Henryk Szmid v. Janina Brown et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 110

The plaintiff, Henryk Szmid, commenced this action by service of process on April 28, 2009, against the defendant, Janina Brown.¹  The complaint alleges that on or about October 20, 2008, the plaintiff was on premises located at 67 Village Green Drive, New Britain, Connecticut, for the purpose of cutting down or removing a tree in the yard of said premises.   The plaintiff sustained injuries when he fell approximately 25 to 30 feet off a ladder, and was struck by a falling limb as well.   He alleges that the tree in which he attempted to cut prior to the fall was located on property owned or controlled by the defendant, Janina Brown, and due to her negligence, he sustained these injuries.

On August 28, 2009, the defendant, Brown, filed a motion for summary judgment, pursuant to Practice Book § 17-44, contending that there exists no genuine issue of material fact and that she is entitled to judgment as a matter of law with respect to all claims contained in the plaintiff's complaint.   She submitted her own affidavit, as well as the plaintiff's deposition testimony dated July 7, 2009, and plaintiff's reply to requests for admission dated June 30, 2009.   The defendant subsequently filed on September 21, 2009, a supplement motion for summary judgment, # 115, attaching a copy of the deposition transcript of Roy Farmer, the alleged owner of the premises where the incident occurred.   On October 14, 2009, the defendant filed a second supplement to the motion for summary judgment, # 118, appending a copy of the plaintiff's revised response to defendant's request for admissions.   The plaintiff filed an objection to the motion for summary judgment on October 27, 2009, and the defendant filed a reply to the objection on November 4, 2009.   This court heard argument on November 30, 2009.

DISCUSSION

“Practice Book § 17-49 provides that 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.”  (Internal quotation marks omitted.)  Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issues 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 ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “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].”  Id.

The defendant initially argues that summary judgment is warranted as there is no genuine issue of material fact as to whether the defendant owed a duty to the plaintiff based upon her non-ownership of the property on which the alleged incident occurred.   She further argues that summary judgment is warranted as there is no genuine issue of material fact as to the element of causation, in that the defendant did “nothing to cause [the plaintiff's] injury, therefore the defendant could not be negligent.”

“In order to assess the duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows ․ Liability for injuries caused by defective premises, however, does not depend on who holds legal title, but rather on who has possession and control of the property ․ Thus, the dispositive issue in deciding whether a duty exists is whether the [plaintiff] has any right to possession and control of the property.”   LaFlamme v. Dallessio, 261 Conn. 247, 251-52, 802 A.2d 63 (2002).   Control is a question of fact.  “The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to mange, superintend, direct or oversee.”  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453-54, 857 A.2d 439 (2004).

The defendant focuses on the issue of ownership, rather than possession and/or control of the premises.   It is clear that there is no dispute as to the actual ownership of the premises, however the four depositions submitted indicate contradictory testimony as to the events leading up to the alleged incident.   Each deponent appears to be telling his/her own version of those discussions relating to the possession and control of the premises, as well as the discussions relating to the cutting down of the tree involved in the incident.   The plaintiff is correct in asserting there exists a material fact in dispute.

The second basis for the defendant's motion for summary judgment relates to whether the defendant was the proximate cause of the injuries allegedly sustained by the plaintiff.  “In brief, negligence is the breach of a duty that one person owes to another, which breach results in an injury.   In order for a party to recover on the basis of negligence it is necessary to establish four elements:  (1) there was a duty;  (2) the defendant was, in fact, negligent (i.e., breached the duty);  (3) there was an injury;  and (4) that the negligence was the proximate cause of or a substantial factor in causing the injury to the plaintiff.”   Smith v. State of Connecticut Department of Transportation, Superior Court, judicial district of Danbury, Docket No. CV 03 0348805 (January 7, 2005).  “[T]he test of proximate cause is whether the conduct is a substantial factor in bringing about the plaintiff's injuries ․ The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.   The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue.”  Mack v. LaValley, 55 Conn.App. 150, 162, 738 A.2d 718 (1999).

“Issues of negligence are ordinarily not susceptible of a summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involved 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 situation ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).   Moreover, the issue “of causation is generally considered to be a question of fact.”   See Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 692 A.2d 709 (1997);  Demoraes v. Nakian, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 06 5002049 (August 19, 2008).

After a review of the transcripts of the depositions submitted, it is unclear whether the plaintiff acted unreasonably or in such a way as to relieve the defendant of any alleged negligence.   It would not be a surprise if the testimony of all parties involved changed several more times prior to the trial.   The material facts, viewed in the light most favorable to the plaintiff, does not establish that the defendant's behavior was not the proximate cause of the injures such that a reasonable person could reach only one conclusion.   There are issues of record reliability and interpretation and issues of credibility of testimony that must be resolved by the trier of fact.  “It is the province of the jury to determine the credibility of the witnesses and the weight to be accorded their testimony.”  Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 285 (1983).

CONCLUSION

Accordingly, the defendant has failed to meet her burden, as the movant, to show the absence of genuine issues of material fact.   The defendant's motion for summary judgment is denied.

Swienton, J.

FOOTNOTES

FN1. On August 31, 2009, the plaintiff filed a motion to cite in additional party defendant, Stanley Charamut.   The court granted the motion on October 6, 2009, and ordered the plaintiff to amend his complaint to add facts showing the interest of Stanley Charamut, as well as having him served.  (Pittman J.) On December 1, 2009, an appearance was filed on his behalf.   Reference to the defendant in this memorandum shall be to the defendant Janina Brown only..  FN1. On August 31, 2009, the plaintiff filed a motion to cite in additional party defendant, Stanley Charamut.   The court granted the motion on October 6, 2009, and ordered the plaintiff to amend his complaint to add facts showing the interest of Stanley Charamut, as well as having him served.  (Pittman J.) On December 1, 2009, an appearance was filed on his behalf.   Reference to the defendant in this memorandum shall be to the defendant Janina Brown only.

Swienton, Cynthia K., J.