Opinion
No. CV10 6007487S
August 16, 2011
MEMORANDUM OF DECISION
The plaintiff, Stephen Perrone, commenced this action by service of process on December 15, 2009, alleging negligence against the defendant, Geraldine Sutfin. The plaintiff alleges the following facts in his complaint. On or about December 21, 2007, the plaintiff, a letter carrier for the United States Postal Service, was lawfully on the property owned by the defendant and attempted to deliver mail to the defendant's home. After delivering the mail, the plaintiff descended from the defendant's front porch and fell on the steps due to an icy and slippery condition. As a result, the plaintiff suffered multiple injuries.
Because the parties refer to the area at issue using similar, but different terms, such as "stairs," "landing" and "steps," the court will refer to the area at issue as "steps" throughout its decision.
The complaint alleges that the defendant's negligence and carelessness caused him to fall and suffer injuries. The plaintiff further alleges, inter alia, that the defendant "breached her duty to maintain the stairs on the front porch in a reasonably safe condition . . . in that: (a) [the] defendant failed to remove an accumulation of snow and/or ice from previous storms . . . (b) [the] defendant failed to inspect the stairs on the front porch to ensure that it was in a reasonably safe condition . . . (c) [the] defendant failed to . . . apply sand and/or salt . . . within a reasonable time . . . [and] ([d]) [the] defendant failed to warn of the slippery and icy conditions . . ." Therefore, the plaintiff seeks damages for medical expenses and economic loss.
On May 12, 2011, the defendant filed a motion for summary judgment on the ground that the plaintiff is unable to identify a specific defect that caused him to fall, and therefore, the plaintiff cannot establish that a specific defect caused his alleged injuries. In support of her motion, the defendant submits the following evidence: (1) an affidavit executed by the defendant, and (2) an uncertified portion of the plaintiff's deposition transcript.
On June 10, 2011, the plaintiff filed an objection to the defendant's motion for summary judgment. On June 13, 2011, the plaintiff filed a memorandum in opposition to the defendant's motion for summary judgment. In support of his opposition, the plaintiff submits the following evidence: (1) an uncertified portion of the plaintiff's deposition transcript, and (2) two photographs of the defendant's steps. This matter was heard at short calendar on June 13, 2011.
"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." (Internal quotation marks omitted.) Unifund CCR Partners v. Schaeppi, 126 Conn.App. 370, 379-80, 11 A.3d 723 (2011). "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." (Internal quotation marks omitted.) Jackson v. Tohan, 113 Conn.App. 782, 786, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009). "While [a party's] deposition testimony is not conclusive as a judicial admission . . . it is sufficient to support entry of summary judgment in the absence of contradictory . . . affidavits that establish a genuine issue as to a material fact." (Citation omitted.) Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996).
"It is not enough . . . for the opposing party merely to assert the existence of . . . a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . ." (Internal quotation marks omitted.) Mitchell v. Redvers, 130 Conn.App. 100, 108 (2011).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner . . . Summary judgment is particularly ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . ." (Citation omitted; internal quotation marks omitted.) Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004). Specifically, "issues of proximate cause may be determined by way of summary judgment only in rare circumstances. [T]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Kumah v. Brown, 130 Conn.App. 343, 349 (2011).
The defendant contends that the plaintiff is unable to provide evidence causally linking a condition of the defendant's property to the plaintiff's slip and fall. Specifically, the defendant argues that the plaintiff testified at his deposition that he does not know what caused him to fall. Therefore, the defendant argues that the court should grant her motion for summary judgment, as the plaintiff cannot prove that his injuries were proximately caused by the defendant's negligence.
In his opposition, the plaintiff argues that contrary to the defendant's affidavit, the plaintiff's evidence demonstrates that there was ice and snow on the steps. The plaintiff also contends that the defendant's affidavit states "that she had someone put down sand," and therefore, "the defendant had direct knowledge that there was ice and snow on the landing and steps." Thus, the plaintiff asserts that the defendant's motion for summary judgment should be denied.
The plaintiff further argues that the defendant owes him a duty of care because the defendant knew that the plaintiff is a letter carrier, which requires him to deliver mail to her home. Additionally, the plaintiff asserts that even if the defendant placed sand on the steps, the presence of loose sand may "[act] as a lubricant whereby the presence of sand causes a person to slip and fall." These arguments, however, are not applicable to the defendant's motion for summary judgment.
As a threshold issue, the court must determine whether the evidence submitted by the defendant is properly authenticated. "[B]efore a document maybe considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 493 (2011). Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
In the present case, the defendant sets forth an uncertified portion of the plaintiff's deposition transcript. Consequently, the deposition transcript is not properly authenticated. Nevertheless, the plaintiff fails to object to the improper authentication, and in fact, also submits an uncertified deposition transcript in opposition to the defendant's motion for summary judgment. Therefore, the court, within its discretion, will consider both parties' submissions.
"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.) RMM Consulting, LLC v. Riordan, 128 Conn.App. 688, 689, 17 A.3d 1106 (2011). As to the first element, "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." Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). In particular, "[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 . . . 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 itself does not establish the status of an invitee, it is essential to it." (Citation omitted; internal quotation marks omitted.) Gargano v. Azpiri, 110 Conn.App. 502, 506-07, 955 A.2d 593 (2008).
Importantly, "[t]he principle upon which the courts distinguish a case of implied license from one of implied invitation in the technical sense, seems to be this: Speaking generally, where 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." Pomponio v. New York, N.H. H.R. Co., 66 Conn. 528, 537, 34 A. 491 (1895). Therefore, "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 also Morin v. Bell Court Condominium Assn., Inc., 25 Conn.App. 112, 121, 593 A.2d 147 (1991) (Dupont, J., dissenting) (stating that in Haffey v. Lemieux, "the status of the plaintiff, a United States Postal Service letter carrier, was arguably that of a business invitee . . ."), aff'd, 223 Conn. 323, 612 A.2d 1197 (1992); see also Smith v. Lantz, Superior Court, judicial district of Hartford, Docket No. 07 5008577 (October 30, 2008, Wagner, J.T.R.) ( 46 Conn. L. Rptr. 589) (stating that a mailman is a business 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." (Citation omitted.) Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). "An occupier of land is chargeable with constructive notice of defects when dealing with invitees . . . The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it." (Internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 294, 791 A.2d 602 (2002), aff'd, 263 Conn. 378, 819 A.2d 795 (2003).
Moreover, "[a] plaintiff must establish that the defendant's conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . The second component of legal cause is proximate cause . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant's conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise." (Citation omitted; internal quotation marks omitted.) Kumah v. Brown, supra, 130 Conn.App. 347. Nevertheless, "[c]ircumstantial evidence . . . may provide a basis from which the causal sequence may be inferred." (Internal quotation marks omitted.) Hall v. Winfrey, 27 Conn.App. 154, 159, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992).
"A permissible inference rests upon premises of fact; conjecture does not." Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 446, 538 A.2d 690 (1988), rev'd on other grounds, 242 Conn. 169, 698 A.2d 810 (1997).
In the present case, the defendant submits a portion of the plaintiff's deposition testimony. The defendant relies on the plaintiff's response to a question:
Q. Do you know what it was that caused your foot to slip?
A. Do not recall. Do not know.
Although it seems that the plaintiff is not able to identify the specific condition that caused him to slip and fall, additional testimony and evidence submitted by the plaintiff is sufficient to preclude summary judgment in favor of the defendant.
The plaintiff testifies to the following facts in his deposition that describe generally the icy conditions on the defendant's property and his account of the accident. The defendant's house was considered a "dismounted stop," which means that the plaintiff parks his vehicle, walks to the house and delivers the mail. About four days before the accident, a storm caused icy conditions on the defendant's property. After the ice storm, the plaintiff declined to deliver the mail to the defendant's house until the date of the injury, as "it was too slippery" and seemed "like black ice." The plaintiff testifies that on the date of the accident, he was slipping while walking toward the defendant's front stairs and held onto the railing when he walked up the steps. After the fall, the plaintiff recounts that his clothing was wet and the back of his hand was bleeding.
Specifically, the plaintiff attests that there was ice on the steps of the defendant's house. The pertinent deposition testimony is as follows:
Q. Is it your testimony that [the defendant's] walkway, from the sidewalk to her house, was not clear at all?
A. It had ice on it . . . [T]here was ice.
The defendant's question is broad enough to include the steps and therefore, the plaintiff's testimony identifies a presence of ice on the area at issue.
Moreover, the plaintiff implicitly testifies that he fell on something slippery. The plaintiff testifies that subsequent to his fall, the plaintiff returned to his truck in order to notify his supervisor. According to the plaintiff, "another delivery service pulled up behind [him] and they started [walking] up the driveway . . . and [the plaintiff] yelled, 'Be very careful, it's slippery,' [and] that I just fell." Thus, by viewing the facts in the light most favorable to the nonmovant, the plaintiff implicitly testifies that he fell on a condition that was slippery.
Accordingly, the court finds that the circumstantial evidence submitted by the plaintiff in his deposition testimony provides "a basis from which the causal sequence may be inferred" (internal quotation marks omitted). Hall v. Winfrey, supra, 27 Conn.App. 159; which in turn, creates a genuine issue of material fact. Although the plaintiff testifies that he does not know what caused him to slip, the plaintiff attests, inter alia, to the presence of ice on the steps and that he fell on something slippery. "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." (Internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010). The plaintiff's testimony provides "room for a reasonable disagreement" (internal quotation marks omitted); Kumah v. Brown, supra, 130 Conn.App. 349; as to whether ice caused the plaintiff to slip, and therefore, "the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Id.
"In a civil case, proof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact." (Internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 641, 698 A.2d 258 (1997).
The defendant cites Oglesby v. Teikyo Post University, Superior Court, judicial district of New Haven, Docket No. CV 00 0445518 (September 12, 2002, Robinson, J.), in support of her motion for summary judgment. In Oglesby v. Teikyo Post University, supra, Superior Court, Docket No. CV 00 0445518, the plaintiff alleged negligence against the defendant after she fell while walking on a pathway located on the defendant's property. At her deposition, the plaintiff testified that she did not know what caused her fall and that a specific object did not contribute to her fall. Id. The plaintiff further testified that there was nothing different about the area where she fell in contrast to the surrounding area. Id.
The trial court granted the defendant's motion for summary judgment, holding that "[w]hat is missing is a linking up of the alleged defect to the fall, such as the plaintiff tripped on the half paved area or, the slope caused the plaintiff to lose her balance and fall, or the area was not properly lit thereby causing the plaintiff to fall." Id. Furthermore, the court stated: "The plaintiff's argument appears to rely on an inference that something about the pathway caused the plaintiff to fall . . . No facts [however] have been presented which would support an inference that the cause of the plaintiff's fall was a defective condition of the pathway." Id. Oglesby v. Teikyo Post University, supra, Superior Court, Docket No. CV 00 0445518, is readily distinguishable from the present case. Here, the plaintiff testifies that he does not know what caused him to slip and fall on the steps. As stated above, however, the plaintiff also testifies that ice was present on the defendant's steps. Additionally, the plaintiff's testimony in connection to the conversation with the delivery serviceman implicitly attests to the fact that he fell on something slippery. As a result, the facts within the plaintiff's testimony do not rely on mere conjecture, but rather permit an inference that the plaintiff slipped on a defective condition, the ice, located on the defendant's steps, which thereby caused the plaintiff to fall. Therefore, Oglesby v. Teikyo Post University, supra, Superior Court, Docket No. CV 00 0445518, does not support the defendant's position.
For similar reasons, the defendant's reliance on Kubera v. Barnes Noble Booksellers, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5012729 (March 10, 2009, Elgo, J.), is equally unavailing. Additionally, the defendant cites to Winn v. Posades, 281 Conn. 50, 913 A.2d 407 (2007), in support of her motion for summary judgment. While the decision provides a relevant discussion involving the applicable rule for causation, our Supreme Court was deciding a case in connection with a motor vehicle accident. Further, the defendant does not analogize the facts of Winn v. Posades to the present case. "It is not the province of this court to formulate arguments for the parties." (Internal quotation marks omitted.) Murphy v. Cowie, Superior Court, judicial district of New Haven, Docket No. CV 09 5031311 (July 13, 2010, Keegan, J.). Therefore, the court will not address its applicability to the present matter.
CONCLUSION
For the foregoing reasons, there is a genuine issue as to whether ice caused the plaintiff to fall on the defendant's property. Accordingly, the defendant's motion for summary judgment is denied.