Opinion
No. 381244
May 25, 2004
MEMORANDUM OF DECISION
Unlike the situation that prevails under Rule 56 of the Federal Rules of Civil Procedure, under Connecticut law it is the movant, in seeking summary judgment, "who has the burden of showing the nonexistence of any issue of fact . . ." Sorban v. Sterling Engineering Corporation, 79 Conn. App. 444, 447-48, 830 A.2d 372, cert. denied, 266 Conn. 925 (2003). The defendant has failed to refute several of the plaintiff's specifications of negligence.
As to the nicer issue of causation, it appears that the plaintiff fell from a defective or broken ladder negligently positioned by the defendant Raposo where it would likely be used by other subcontractors. There were no witnesses to the plaintiff's fall, and, because of his injury, the plaintiff has no recollection of the circumstances of his fall. The situation is governed by Hall v. Winfrey, 27 Conn. App. 154, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992). In Hall, the plaintiff's decedent died when he fell down stairs in an unlit hall in the defendant's home. No one witnessed the fall. The Appellate Court upheld a verdict for the plaintiff against the claim that there was no evidence of causation, stating: "`Circumstantial 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. And whether the defendant's negligence consists of the violation of some statutory safety regulation or the breach of a plain common law duty of care, the court can scarcely overlook the fact that the injury which has in fact occurred is precisely the sort of thing that proper care on the part of the defendant would be intended to prevent, and accordingly allow a certain liberality to the jury in drawing its conclusion.' W. Prosser W. Keeton, Torts § 41." (Emphasis added; internal quotation marks omitted.) Id., 159; see id., 161; see W. Prosser W. Keeton on Torts § 41, p. 270 ("If, as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists"); D. Dobbs, The Law of Torts § 173 ("if the defendant's conduct is deemed negligent for the very reason that it creates a core risk of the kind of harm suffered by the plaintiff, then it is often plausible to infer causation in fact"); Spruill v. Downing, Superior Court, Judicial District of Middlesex, No. 68193 (Sept 6, 1995); Haft v. Lone Palm Motel, 3 Cal.3d 756, 91 Cal.Rptr. 745, 478 P.2d 465, 469 (1970) ("the breach of a statutory duty itself will often suffice to give rise to an inference from which a jury may find that a given injury was the actual and proximate result of the violation" [citations omitted]).
As Judge Aurigemma observed in Spruill v. Downing, supra, after a thorough exegesis of conflicting Connecticut case law, "it appears that the distinction between impermissible speculation and permissible inference is elusive at best." However, contrary to the defendant's contention at oral argument, Hall v. Winfrey, supra, 27 Conn. App. 154, is not fact specific but, as reflected in the italicized language supra, is based on the general proposition that where "the injury which has in fact occurred is precisely the sort of thing that proper care on the part of the defendant would be intended to prevent" courts are more likely to submit the issue of causation to the jury, at least where the trier is deprived of any other contrary evidence of causation.
Thus, in Blados v. Blados, 151 Conn. 391, 198 A.2d 213 (1964), the trial court held that a directed verdict was erroneously granted in favor of the defendant based upon the following evidence. The plaintiff's decedent stated that he was going to the defendant's house. He was sober at that time. Approximately eight hours later the body of the decedent was found lying on a walk below the rear outside stairway at the defendant's house. "The decedent was lying on his back with his arms outstretched and his head resting on the walk just below the outer edge of the stairway. His legs extended away from, and at a right angle to, the stairs . . . He had sustained a fracture at the base of the skull and a laceration at the same location . . . In the opinion of the medical examiner, the decedent had fallen a distance greater than his height and had struck his head on the walk at the place where his body was found; . . . There was evidence to show that the stairway was steep, at an angle approximating forty-five degrees; the risers of the stairs were uneven and of varying heights; the treads were of varying widths; the handrail was insufficient, of improper height and unsafe. A leader from the roof projected into the stairway for several inches, creating a hazardous condition." Id., 393-94.
In reversing the judgment of the trial court the Supreme Court stated: "It is true that there was no direct evidence to show that the decedent was ascending the stairway or that he fell from it. Nevertheless, triers 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 . . . Proof of a material fact by inference 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." Id., 395.
The defendant has failed to show the nonexistence of any issue of material fact with respect to duty, breach of duty or causation. His motion for summary judgment is denied.
By the Court
Bruce L. Levin Judge of the Superior Court