Opinion
No. CV06 5001420-S
October 21, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #120
In this action, the plaintiff, Ercan Uzun, alleges that during the course of a soccer game on the premises of the defendant, Oakwood Sports Center, he was negligently pushed and intentionally forced to the ground by one Carlos Coelha, who was also a participant in the soccer game and that the plaintiff suffered injuries thereby.
The defendant, Oakwood Sports Center of Hamden, Inc., moves for summary judgment on the basis that, as a matter of law, "its alleged negligence was not the cause in fact of the plaintiff's injuries and damages." In support of this position, the defendant cites Vaillancourt v. Latifi, 81 Conn.App. 541, 840 A.2d 1209 (2004) and Sullivan v. Quiceno, Superior Court, judicial district of New Haven, Docket No. CV054003173S (October 5, 2007, Holzberg, J.) (44 Conn. L. Rptr. 338).
After careful review of the file and all the applicable affidavits and proof submitted, this court is of the opinion that there are no genuine issues of material fact and therefore grants the defendant's motion for summary judgment. They establish that Coelha demonstrated no prior propensity for violent behavior during the game in question or in past games, that Coelha had only entered the game two or three minutes before the assault occurred, that there was no history of discord between Coelha and the plaintiff, and that the assault happened suddenly and without warning. Under these circumstances and as a matter of law, the defendant could not have foreseen that the plaintiff would be injured in such a manner.
In Vaillancourt, the plaintiff brought an action in negligence against the defendant, the Waterbury Young Men's Christian Association (YMCA), stemming from injuries he sustained while playing catcher as a result of a collision with a base runner at home plate during a YMCA league softball game. Vaillancourt v. Latifi, supra, 81 Conn.App. 543. The plaintiff alleged that the league participant that initiated the collision acted with intent and malice, and that the defendant "was obligated to provide competitors with facilities, organization and instruction `to run a safe league,'" but failed to do so. Id., 543-44. The trial court granted the defendant's motion for summary judgment, finding that there was no evidence that the defendant owed the plaintiff a duty, or that it breached any alleged duty. Id., 544.
On appeal, the Appellate Court upheld the trial court's ruling, basing its decision on separate, though related, grounds. It held that "[a]s a matter of law, the YMCA did not owe the plaintiff a duty of care, as nothing alleged in the complaint was the legal cause of his injuries." Id. After reciting the well-established elements of a negligence claim-duty, breach, causation, and damage — the Appellate Court focused on causation and, more specifically, proximate causation. Id., 545-46. Acknowledging that "[t]he fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct," the Appellate Court noted that in cases such as the one before it, where the alleged tortfeasor's conduct was not the direct cause of the plaintiff's injuries, the proper analysis to use for determining legal causation is that used to examine the extent of the alleged tortfeasor's duty. Id., 546. The threshold inquiry to this analysis, the Appellate Court continued, is "whether the specific harm alleged by the plaintiff was foreseeable to the defendant." Id., 547 (quoting Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997)).
In Jaworski, the plaintiff, a female soccer player, sued the defendant, a male soccer player, in negligence for injuries she suffered when the defendant made contact with her while trying to obtain the ball during the course of play. Jaworski v. Kiernan, supra, 241 Conn. 400-01. After considering "(1) the normal expectations of participants in the sport [of soccer]; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions;" id., 407; the Supreme Court determined that "a standard of care imposing on . . . a participant in a team contact sport . . . a legal duty to refrain from reckless or intentional conduct" was appropriate. Id., 412. Thus, "[p]roof of mere negligence is insufficient to create liability." Id.
With these rules in mind, the Appellate Court determined "that the plaintiff failed to allege material facts with respect to the mechanism of his injury that gave rise to a duty owed him by the YMCA." Id., 548. It reached this conclusion by reasoning that:
The essence of the plaintiff's claim is that the umpire failed to prevent [the base runner's] running into the plaintiff. That claim is predicated on the assumption that [the base runner] demonstrated unsportsmanlike behavior prior to the collision. The plaintiff concedes, however that [the base runner] did nothing prior to the collision to alert anyone that he intended to cause the plaintiff harm or to otherwise require [his] removal from the game. Individuals who serve as officials at athletic competitions are not clairvoyant, and we do not presume that they can foresee a malicious and intentional act of bad sportsmanship such as that alleged by the plaintiff. As a matter of law, the umpire's failure to eject [the base runner] from the game prior to the time he ran into the plaintiff was not the proximate cause of the plaintiff's injuries.
Id., 548-49.
Sullivan v. Quiceno involved facts substantially similar to those before the court in the present case. In Sullivan, the plaintiff was a member of a soccer team that played in a league organized by the defendants, the Connecticut Junior Soccer Association, Inc. and Stamford Youth Soccer League, Inc. Sullivan v. Quiceno, supra, 44 Conn. L. Rptr. 338. During a game, he was severely injured when an altercation broke out on the field, during which a member of the opposing team "suddenly and without any warning, negligently and carelessly assaulted . . . the plaintiff." Id. The plaintiff alleged that the defendants were negligent because they "failed to provide adequate personnel to monitor and control the game, failed to adequately train its personnel to deal with altercations and failed to provide safeguards to ensure altercations would not occur." Id. The defendants argued that they were entitled to judgment as a matter of law because their alleged negligence was not the proximate cause of the plaintiff's injuries. Id., 339.
The Sullivan court, relying almost entirely on Vaillancourt, found that the defendants were entitled to judgment as a matter of law because there were no facts that suggested the defendants or the referees they employed to monitor the game in question could have foreseen the sudden assault that was the cause in fact of the plaintiff's injuries. Id., 340-41.
The same result occurs here because the plaintiff's injuries could not have been foreseen by the defendant or the referee that it charged with monitoring the game in question and therefore the plaintiff cannot demonstrate the defendant's alleged negligence was the proximate cause of his injuries.
The plaintiff, in his motion in opposition, makes two arguments as to why there remain genuine issues of material fact that should preclude summary judgment. First, the plaintiff contends that, unlike the injuries suffered by the plaintiffs in Vaillancourt and Sullivan, the injury he suffered was foreseeable, given the circumstances that preceded the alleged on-field assault. However, there is no evidence to support this proposition. The facts, as gleaned from the plaintiff's admissions and the depositions of the plaintiff, the referee, and Carlos Coelha, the apportionment defendant accused of assaulting the plaintiff, however, demonstrate that under these circumstances and as a matter of law, the defendant could not have foreseen that the plaintiff would be injured in such a manner.
The plaintiff also argues the defendant's motion for summary judgment should be denied because it failed to address all the issues of material fact alleged in his complaint. Namely, the plaintiff contends his one-count complaint also asserted a separate negligence claim for "defective premises." The plaintiff points to three allegations found in his complaint as establishing this claim, which aver that the defendant, "failed to provide a safe and secure environment for individuals lawfully on the premises; failed to warn the plaintiff of the risks in using the facilities; [and] failed to properly monitor, inspect and/or patrol the premises."
The plaintiff's attempt to defeat the defendant's motion for summary judgment by arguing his complaint also asserted a claim for premises liability is misplaced. The plaintiff's complaint and the defendant's answer establish that the plaintiff was lawfully on the defendant's premises when the injury occurred. Therefore, the plaintiff was either an invitee or a licensee. See Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320-21, 819 A.2d 844 (2003) If the plaintiff was an invitee, he was required to plead and prove, "(1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Martin v. Stop Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002). Similarly, if the plaintiff was a licensee, he was required to plead and prove, among other things, that the plaintiff failed to exercise reasonable care "(a) to refrain from actively subjecting [him] to danger and (b) under certain circumstances to warn [him] of certain types of dangerous conditions on the premises." Fabrizio v. Youhas, 148 Conn. 426, 428, 172 A.2d 69 (1961). Thus, in either instance, the plaintiff's pleadings were, at the bare minimum, required to identify the allegedly defective condition on the premises. No such pleadings were made, so it cannot be said that the plaintiff's complaint asserted a negligence claim for premises liability on the basis of a defective condition.
In his memorandum of law, the plaintiff attempts to bolster his claim that there are genuine issues of material fact as to whether the premises — in particular, the playing field — "were in a dangerous and unsafe condition and not fit to play soccer on." He points to Coelha's deposition testimony, in which Coelha stated that "the fields are a little beat up," the field was taped in places, and the surface was hard and had no cushion or padding to protect against injury. However, a plaintiff is not permitted to fortify their complaint by presenting a new cause of action or expanding the existing cause of action by way of deposition testimony that asserts facts not alleged in the pleadings. See LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006) (stating the rule and applying it to affidavits and counter-affidavits). "The [genuine] issue [of material fact] must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Internal quotation marks omitted.) Id.
For all the foregoing reasons, the defendant's motion for summary judgment is granted.