Opinion
CV126013254S
01-04-2016
Grazyna Polska v. Town of Wolcott et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #138
Andrew W. Roraback, J.
I
BACKGROUND
In count one of her complaint, dated January 13, 2012, the plaintiff, Grazyna Polska, alleges that at approximately 6:45 p.m. on February 20, 2010, she was lawfully walking on a sidewalk located near the intersection of Sunrise Road and Sunrise Park in Wolcott, Connecticut. At that time and place, she slipped and fell due to a covering of snow and ice on that sidewalk. The plaintiff further alleges that she sustained injuries as a result of the fall and that such injuries were caused by the negligence of the defendant, the town of Wolcott, which she alleges, owned and/or controlled the sidewalk in question on the day of the incident. The plaintiff also alleges that her action is being brought pursuant to General Statutes § § 7-163a and 13a-149.
General Statutes § 7-163a provides in relevant part:
General Statutes § 13a-149 provides in relevant part: " Any person injured in person or property by means of a defective road . . . may recover damages from the party bound to keep it in repair . . . No action for any such injury shall be maintained against any town . . . unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town . . ."
On February 7, 2015, the defendant moved for summary judgment on count one of the complaint, claiming that there is no genuine issue of material fact that it had neither actual nor constructive notice of the claimed defect and therefore it cannot be found liable for the plaintiff's injuries. The defendant further argues that there is no genuine issue of material fact that, as a matter of law, it cannot be held liable to the plaintiff pursuant to the provisions of § 7-163a. The plaintiff filed an objection to this motion on March 11, 2015, and argument on the motion was held before the court on September 8, 2015.
In support of its motion, the defendant has submitted an affidavit from its Public Works Director, David Kalinowski, which indicates that his office did not receive any complaints relating to ice or snow on the subject sidewalk. It has also submitted a certified weather record indicating that the temperature at the airport in Meriden never went below 36 degrees on the day the plaintiff fell. Finally, the defendant has also submitted an excerpt from the plaintiff's deposition in which she testified that " I think I hit ice" when being questioned about the cause of her fall.
In opposition, the plaintiff relies on the deposition testimony of Mr. Kalinowski for the proposition that the town plowed the road adjacent to the sidewalk. The plaintiff also refers to her own testimony for the proposition that at the time she fell, she was stepping over a pile of snow likely deposited on the sidewalk as a result of that plowing. The plaintiff thus asserts that the defendant had actual notice of the snow pile which caused her to fall because it was the defendant which created it.
II
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45.
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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 a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendant has moved for summary judgment on the basis that (1) it never received any complaints about the snow pile which caused plaintiff's fall; (2) the temperature was above freezing all day prior to the fall; and (3) the plaintiff herself only " thinks" she slipped on ice. Taken together, the defendant alleges that these facts must lead to a conclusion that it had neither actual nor constructive notice of the defect that caused the plaintiff's fall. The plaintiff counters by arguing that both her own and Mr. Kalinowski's deposition testimonies create a genuine issue of material fact as to whether the defect which caused her to fall was a pile of snow that was on the sidewalk as a result of the defendant's plowing the entrance to the park, which is adjacent to the sidewalk in question.
Our courts have determined that " [i]ssues 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, and requires the trier of fact to determine whether the standard of care was met in a specific circumstance." (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). This case is unlike James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011), in which the plaintiff was injured when she slipped on the step of a pool ladder. In the James case, the court granted summary judgment because the plaintiff was unable to identify the specific defect on the pool ladder that caused her to slip. In this case, the plaintiff's testimony stands in marked contrast to that of the plaintiff in James, because the current plaintiff clearly testified that there was a pile of snow and ice on the sidewalk and that she fell when trying to step over it.
The Appellate Court has held that it is " unnecessary for [a] court to charge as to the necessity of notice to the defendant of the dangerous condition of the premises since upon the evidence that condition was created by its own agent." (Internal quotation marks omitted.) Fuller v. First National Supermarkets, Inc., 38 Conn.App. 299, 304, 661 A.2d. 110 (1995). That holding counsels against granting summary judgment in this case, since " the complaint, read broadly and realistically, [provides] the defendant with sufficient notice that the plaintiff [is] claiming that the defendant caused [the defect] . . ." Id., 303. The deposition testimony of the plaintiff is consistent with this claim.
" A plaintiff can prove the elements of negligence using either direct or circumstantial evidence . . . Circumstantial evidence is evidence of facts from which the trier is asked to infer the existence of, and, so, to find proven, another fact or [set of facts] . . . Circumstantial evidence need not be so conclusive as to exclude every other hypothesis . . . Rather, circumstantial evidence must only [produce] in the mind of the trier a reasonable belief in the probability of the existence of the material fact." (Citations omitted; footnote omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 777-78, 83 A.3d 576 (2014).
" Circumstantial evidence requires that the trier [find] that the facts from which the trier is asked to draw the inference are proven and that the inference is not only logical and reasonable but strong enough so that it can be found that it is more probable than otherwise that the fact to be inferred is true . . . In contrast, impermissible conjecture and surmise would require a trier to infer a new set of facts from unproven or nonexistent facts." (Citation omitted; internal quotation marks omitted.) Id., 777 n.5. " [T]riers of fact must often rely on circumstantial evidence and draw inferences from it . . . There is no rule of law which forbids the resting of an inference on facts whose determination is the result of other inferences." (Citation omitted.) Blados v. Blados, 151 Conn. 391, 395, 198 A.2d 213 (1964).
In Hall v. Winfrey, 27 Conn.App. 154, 159, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992), the Appellate Court considered a fall down a flight of stairs, and stated, " [c]ircumstantial evidence . . . may provide a basis from which the causal sequence may be inferred. Thus it is every day experience that unlighted stairs create a danger that someone will fall. Such a condition greatly multiplies the chances of accident, and is of a character naturally leading to its occurrence. When a . . . person tumbles down the steps, it is a reasonable conclusion that it is more likely than not that the fall would not have occurred but for the bad lighting . . . Such questions are peculiarly for the jury; and . . . are questions on which a court can seldom rule as a matter of law." (Internal quotation marks omitted.)
In the present case, the plaintiff testified that she thinks she slipped on ice while trying to step over a residual pile of snow. This provides circumstantial evidence of a specific defect. From evidence of a specific defect, there is a genuine issue of material fact as to whether the plaintiff's fall was due to a residual pile of snow and ice. The defendant has failed to make a showing that there is no genuine issue of material fact that the plaintiff did not fall because of a condition it created.
Finally, the defendant argues that summary judgment should be granted with respect to the portion of the plaintiff's claim that relies on § 7-163a, because § 13a-149 is the exclusive remedy for those claiming injuries as a result of a fall caused by ice and snow on a municipal sidewalk. Section 7-163a " relieves the municipality of the duty and liability with respect to the removal of snow and ice from public sidewalks, and . . . shifts that duty and liability to the abutting landowner." Rivers v. New Britain, 288 Conn. 1, 22, 950 A.2d 1247 (2008). The Connecticut Supreme Court has construed General Statutes § 52-557n " to provide that . . . in an action against a municipality for damages resulting from a highway defect, the defective highway statute [§ 13a-149] is the plaintiff's exclusive remedy. Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400, 408 (2001). Section 13a-149 has been interpreted to " [include] injuries caused by defective public sidewalks . . ." Rodriguez v. New Haven, 183 Conn. 473, 475 n.1, 439 A.2d 421 (1981). There is, therefore, no genuine issue of material fact that the defendant is entitled to judgment as a matter of law on the claims the plaintiff has brought under § 7-163a.
General Statutes § 52-557n provides in relevant part. " (a)(1) . . . a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
III
CONCLUSION
For the fore-going reasons, the defendant's motion for summary judgment is denied, except that the plaintiff will not be permitted to proceed against the defendant pursuant to § 7-163.
" (b) . . . such town . . . shall not be liable to any person injured in person or property caused by the presence of ice or snow on a public sidewalk unless such municipality is the owner or person in possession and control of land abutting such sidewalk, other than land used as a highway or street, provided such municipality shall be liable for its affirmative acts with respect to such sidewalk . . . " (c)(1) The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had prior to the effective date of any ordinance adopted pursuant to the provisions of this section and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury."