Opinion
No. CV01-0164494S
December 5, 2003
MEMORANDUM OF DECISION MOTIONS #117 #118 FOR SUMMARY JUDGMENT
BACKGROUND
The plaintiff Gus Ward, at the time of the incident, was a member of the Waterbury Police Department and acting in the performance of his duties as a police officer. On July 24, 1999, the plaintiff was sent to respond to a 911 call and went to a three-family house at 54 Winyah Street in Waterbury.
According to his deposition, the plaintiff went to the front door of the house, knocked and received no answer. He then went to the back door, entered the back hallway and went up the back stairs. On the second floor, he knocked on a door, but again received no answer. He called his dispatcher to have them phone the address, and Mr. Ward heard the phone ringing inside, and the phone was not answered. He then decided to leave to try the front door again. [Ward's deposition transcript p 36]. In turning to go down the stairs to leave, it is alleged that Mr. Ward "forgot the stairs were right there, [and] almost fell," due to allegedly defective conditions in the stairs and back hallway. [Deposition transcript 37]
The plaintiff filed a complaint against the defendant homeowner in an action dated March 15, 2001. The complaint alleges that the homeowner's negligence and carelessness in maintaining the stairway, in failing to warn the plaintiff of the unsafe conditions and in failing to remedy the unsafe conditions were the proximate cause of the plaintiff's injuries. The City of Waterbury's motion to intervene as plaintiff, based on workers' compensation payments to the plaintiff, was granted.
In a motion dated June 3, 2003, the defendant moved for summary judgment as to both the complaint and the intervening complaint. The defendant filed a memorandum in support of the motions. Affidavits and excerpts of the plaintiff's deposition transcript were attached to the defendant's memorandum. On August 20, 2003, the named plaintiff filed an objection to the motion for summary judgment, with a memorandum of law, which referenced excerpts from the deposition of the plaintiff. The intervening plaintiff adopted the plaintiff's position, with no further information for the court's consideration.
THE LAW
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 . . . Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24 (1999). The test to be applied when determining a motion for summary judgment is whether a party would be entitled to a directed verdict on the same facts. Lunn v. Cummings Lockwood, 56 Conn. App. 363, 370 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, while the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Rivera v. Double A Transportation, Inc., supra. See also, Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).
DISCUSSION
The defendant's motion for summary judgment alleges that there is no genuine issue of material fact and that the defendant is entitled to judgment as a matter of law. In his brief accompanying the motion, the defendant argues that the "firefighters rule," as applied to this case, prohibits any recovery. In his memorandum in objection to the notion for summary judgment, the plaintiff maintains that there exists issues of material fact that render summary judgment inappropriate.
In Roberts v. Rosenblatt, 146 Conn. 110, 113, 148 A.2d 142 (1959), the court held that a firefighter that enters premises in the performance of his public duty held a status akin to that of a licensee. Accordingly, the firefighter was owed no greater duty than that due a licensee. Id. This has become known as the Firefighter's Rule. Subsequently, the Supreme Court held that the Firefighter's Rule was applicable to police officers as well. Furstein v. Hill, 218 Conn. 610, 615-16, 590 A.2d 939 (1991).
"Ordinarily, an owner of land owes no duty to a licensee to keep his premises in a safe condition, because the licensee must take the premises as he finds them, including any danger arising out of their condition." Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382 (1971). However, under certain circumstances, a heightened duty to the licensee can arise. Furstein v. Hill, supra, 218 Conn. 624. Specifically, if a licensor actually or constructively knows of the licensee's presence on the premises, the licensor must use reasonable care both to refrain from activity subjecting him to danger and to warn him of dangerous conditions which the possessor knows of but which he cannot reasonably assume that the licensee knows of or by reasonable use of his faculties would observe." (Citations omitted; internal quotation marks omitted.) Morin v. Bell Court Condominium Association, Inc., 223 Conn. 323, 329, 612 A.2d 1197 (1992).
In the present case, in opposing a Motion to Strike dated April 26, 2001, the plaintiff concedes that the Firefighters Rule applies. Furthermore, in his memorandum of law in opposition to the summary judgment motion, the plaintiff concedes that the homeowner did not have actual knowledge of the plaintiff's presence on his property. The plaintiff, in his memorandum, rightfully recognizes that "the question remains as to whether the defendant had constructive knowledge of the plaintiff's presence on the premises." The plaintiff does not allege any facts that would lead the trier of fact to find that the defendant had constructive notice. Rather, the plaintiff's objection to this motion contains no additional supporting evidence and is conclusory, stating that the issue of constructive notice "is a question of fact to be determined at the time of trial."
The existence of a material fact must be demonstrated by concrete evidence. Page v. Burger King Corporation, Superior Court, No. CV96-0561567 (Teller, J., July 2, 1998). When a party moves for summary judgment and there are no contradictory affidavits, the court properly decides the motion by looking only to the sufficiency of the movant's affidavits and other proof. Both direct and circumstantial evidence may establish constructive notice. In this case, no evidence, either direct or circumstantial, that the defendant had notice of the officer's presence, has been provided to the court. "An inference must have some definite basis in the facts . . . and the conclusion based on it must not be the result of speculation and conjecture." Gulycz v. Stop Shop Companies Inc., 29 Conn. App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). The homeowner's affidavit, and his wife's affidavit, are uncontroverted by any evidence articulated by the plaintiff. The plaintiff's deposition only reveals that the police officer had no idea why he was sent to this location, could not find any one at the location to respond to his knocks, could not find any emergency condition at the location, and that phone calls into the location went unanswered.
Viewed in the light most favorable to the plaintiff, and based on the totality of the evidence, it cannot be found that the defendant had constructive notice of the officer's presence on the premises. There is no issue of fact which can be reasonably determined or reasonably inferred which supports any conclusion but that the plaintiff has failed to produce sufficient evidence to support the claim that there is a genuine issue of material fact as to the constructive notice of the officer's presence to the defendant. The defendant having demonstrated the nonexistence of a genuine issue of material fact is therefore entitled to judgment as a matter of law.
THE INTERVENING COMPLAINT
The defendant argues that count two is derivative of count one and thus also subject to the "firefighter's rule." For the reasons stated above, the defendant's motion for summary judgment, on the intervening complaint, is granted.
ALVORD, JUDGE.