Opinion
No. HHB CV09 5011585
October 5, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
What kind of injury to a tenant's child is foreseeable when a landlord allows a pile of rocks and loose concrete to accumulate in the backyard of a small apartment building? Olga Rivera sues Victory Properties LLC on behalf of her minor daughter Adriana Ruiz ("the plaintiff" infra) for personal injuries sustained when another child living in the building threw a rock off a third floor balcony and hit the plaintiff while she was playing below. The defendant is the landlord of the apartment building in which the two families reside.
The defendant moves for summary judgment, arguing that Victory Properties LLC owed no duty of care to the plaintiff and cannot as a matter of law be liable to her. The plaintiff opposes summary judgment.
THE UNDISPUTED FACTS
On the date of this incident, May 14, 2008, the defendant Victory Properties LLC was the owner and landlord of a six-family apartment building located at 138 North Street, New Britain, Connecticut. Saribel Cruz resided in a third-floor apartment with her son Luis who was ten years old. Ms. Cruz is the aunt of Adriana Ruiz, who was seven years old. Adriana resided in another apartment with her mother Olga Rivera. Some buckets, trash, rocks, and broken concrete pieces were located in the backyard of the building. Prior to the incident on May 14, 2008, one tenant had complained to the landlord about the conditions of the backyard.
On the date of the incident, a number of the children were playing in the backyard, watched by a number of adults. It was common for children who lived in the building, often joined by other neighborhood children, to play in the backyard, where they would sometimes ride or park their bikes, and where they would sometimes use a basketball hoop that had been set up. On this pleasant May day, Luis Cruz decided to see if he could split a rock by throwing it to the ground. He took a large rock from the backyard up to his family's third-floor apartment and threw it from the window or balcony to the ground. He saw his cousin Adriana below and yelled to her to get out of the way, but the rock hit her in the head, and she was badly injured.
Olga Rivera has submitted an affidavit in opposition to summary judgment in which she states "[u]pon information and belief . . . Luis Cruz, a minor child, picked up a loose piece of concrete or cinderblock" and dropped it from the balcony, hitting Adriana. For purposes of summary judgment, an affiant is not permitted to offer evidence upon information or belief, but rather must offer evidence as would be admissible at trial. The transcripts of witnesses at the prejudgment remedy hearing all describe the object thrown by Luis as a "rock." From the photographs attached as exhibits to the plaintiff's opposition papers, and from the descriptions of the photographs by Saribel Cruz, it appears that the families in the building may have used the term "rock" to describe either an actual rock or any large heavy piece of concrete. For consistency, the court will use the term "rock," as have the witnesses in the exhibits.
STANDARDS FOR SUMMARY JUDGMENT
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the movant is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the 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). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law. Soares v. George A. Tomasso Construction Corp., 66 Conn.App. 466, n. 2 (2001); Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).
THE QUESTION OF DUTY
When determining whether a duty of care exists, the test 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 this case.
Zamstein v. Marvasi, 240 Conn. 549, 558, 692 A.2d 781 (1997). The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy. Mendillo v. Board of Education, 246 Conn. 456, 483-84, 717 A.2d 1177 (1998).
First, this court is called upon to determine whether, as a matter of law, the injury to Adriana Ruiz was foreseeable to the defendant such that the defendant had a duty to take reasonable steps to prevent that injury from occurring. In Allen v. Cox, 285 Conn. 603, 942 A.2d 296 (2008), the Supreme Court framed the question: "would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Id., at 610; see also, Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997). In this case, the question would be: would a reasonable landlord, knowing that there were rocks in the backyard area where children played, find it foreseeable that a child was likely to be injured by one child lugging a rock up to the balcony of the building and pitching the rock off, onto the head of another child?
The law rejects a literal foreseeability test, meaning that the fact that such an occurrence is possible does not mean that such an occurrence is probable enough to create a duty of care. In Lodge v. Arett Sales Corp., 246 Conn. 563, 717 A.2d 215 (1998), the Supreme Court considered the issue of foreseeability in the context of an unlikely, but not impossible, occurrence. There, the defendant was allegedly negligent for failing to turn off a fire alarm system before performing maintenance on the system. The system sent out an alarm during the maintenance work, the local fire company responded in their fire engine, and because the fire engine had faulty brakes the engine collided with a tree, injuring the named plaintiff who was one of the responding firefighters. The court considered the nexus between the type of injury that occurred (personal injuries in a crash caused by faulty brakes) and the conduct of the defendant (negligently causing an alarm to be sent), and rejected the existence of a duty from the defendant to the plaintiff in that circumstance. "Imposing liability on these defendants for a harm that they could not be expected to anticipate and over which they had no control would serve no legitimate objective in the law. Id. at 578.
In hindsight, in this case and in Lodge, supra, we know that the unfortunate and unlikely event did in fact occur. But the law has long rejected the notion that a defendant is required to take precautions against hazards that are too remote to be reasonably foreseeable. Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 345 (1928); Lodge, supra, at 575. This does not mean that the defendant had no duty at all. Indeed in Lodge, the court noted that it might be reasonable in some circumstances to impose liability on the initiator of a false alarm. Id. at 578.
In a backyard where children routinely play outside, a landlord may have a duty to attempt to prevent foreseeable hazards; he may have to clean up and remove loose or sharp concrete upon which a child might twist an ankle or fall and cut herself. But the circumstance of someone in one tenant's apartment throwing a heavy object to the ground and injuring another tenant, particularly if there is no evidence that any such thing has happened there before, is not a circumstance that the landlord has a duty to guard against. See, e.g. Trice v. Chicago Housing Authority, 14 Ill. App.3d 97, 302 N.E.2d 207 (1973) (no duty of landlord to tenant who was injured when another tenant threw a television over high railing, causing death).
In determining whether a duty of care exists, the second consideration is whether there are reasons of public policy to extend such a duty to the defendant in these circumstances. The law recognizes that there are policy reasons for using the concept of foreseeability to circumscribe a defendant's duty of care, particularly when the most proximate cause of the harm is the conduct of a third party, here young Luis Cruz. The Supreme Court has held that the court must consider whether recognition of a duty under the circumstances of the case would require arbitrary limitations, whether the recognition would impose some additional economic burden on the general public, whether it would yield any significant social benefits, and whether it would create a substantial risk of double recovery. Mendillo v. Board of Education, supra, 486.
The problem of arbitrary limitations is a significant one here. What would be the limitation of liability on a landlord for personal injury to a tenant if liability is imposed in this case? Suppose there is heavy lawn furniture in the backyard? What about the sandbags or weights used to stabilize a patio umbrella or a movable basketball backboard? (In fact, one photograph submitted as an exhibit in this case shows a large rock used to stabilize the basketball hoop apparatus in this backyard.) What about a flowerpot near the back steps? If thrown off a balcony, practically anything can constitute a dangerous missile. The defendant argues and the court agrees that imposing liability in this incident is tantamount to imposing strict liability on any landlord who rents apartments above the first floor.
Such an imposition would create substantial economic and social costs. It cannot be ignored that this incident was precipitated by a child acting, as children often do, in a playful but irresponsible manner. To create liability for landlords in this situation would likely discourage landlords from renting apartments to families with young children. It would surely drive up the economic costs associated with maintaining and insuring rental properties, without a concomitant benefit of safeguarding against conditions and hazards that are much more prevalent than the one here. Recognizing such a duty, rather than contributing to the welfare of the public, is more likely to create a new burden on families looking for affordable rental housing. Though imposing liability on the defendant would surely be a benefit to the plaintiff and her family, the overall economic and societal costs militate against such an imposition in like situations.
Under both the foreseeability and the public policy prongs of the test for determining the existence of a duty, the court finds that no duty exists under the circumstances presented by this case.
CONCLUSION
There are no material facts in dispute. There is no evidence from which any reasonable trier of fact could conclude that the landlord could foresee the type of incident that caused injury to this plaintiff. Nor is there any compelling public policy reason to reach for a conclusion that would impose a duty on the landlord in this circumstance.
The defendant's Motion for Summary Judgment is granted.