Sandra Jenkins v. Housing Authority of New Haven (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 122)

On December 7, 2009, the defendant, Housing Authority of New Haven (HANH), filed a motion for summary judgment and memorandum of law in support (# 122), arguing that it is entitled to judgment as a matter of law because there are no genuine issues of material fact in dispute as to whether it was in possession and control of the premises where the plaintiff was injured.   The plaintiff, Sandra Jenkins, filed an objection to HANH's motion (# 125) and a memorandum of law in opposition (# 126) on December 28, 2009.   On January 11, 2010, HANH filed a reply to Jenkins's opposition (# 127).   The court heard oral argument on the motion for summary judgment at the short calendar on April 12, 2010.   For reasons more fully set forth herein, this court denies the defendant's motion for summary judgment.

On March 9, 2009, Jenkins filed a single-count complaint against HANH alleging that on or about March 19, 2007, she was “walking ․ in a parking lot” that was “owned, controlled, possessed, and/or maintained by the defendant ․” when she “was caused to slip and fall” due to the slippery condition of the pavement and an accumulation of ice and snow.   Jenkins claims that her injuries were caused by the negligence of HANH, and, that at the time of the incident HANH “had notice, or should have had notice of the dangerous and defective condition” that existed on the subject premises.   On May 19, 2009, HANH filed a third-party complaint against Cherry Hill Construction Company, Inc. (Cherry Hill), a contractor hired by HANH to demolish the premises where Jenkins was injured.   On August 10, 2009, Jenkins filed a complaint against the third-party defendant, Cherry Hill, containing the same allegations as against HANH.

“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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law ․” (Citations omitted.)  Aspetuck Valley Country Club v. Weston, 292 Conn. 817, 822, 975 A.2d 1241 (2009).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).  “It is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard.”  Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978).

HANH argues that it neither possessed nor controlled the premises where Jenkins was injured.   In support of this contention, HANH has submitted an affidavit of Karen Dubois-Walton, its executive director.   The affidavit refers to an agreement between Cherry Hill and HANH regarding the demolition of a housing development.   HANH avers that this development encompasses the area where Jenkins was allegedly injured.   Moreover, the affidavit states that “[b]efore the date of the incident of March 9, 2007, HANH had turned over control of the property to Cherry Hill ․ That at the time of the incident, Cherry Hill had erected a fence around the development and the area was closed to the public ․ As of the date of the incident, March 19, 2007, HANH had no responsibility for inspecting the premises, maintaining the premises, including ice and snow and any other issues, and anything else to do with the property ․ HANH was not in possession of the premises since they had turned everything over to Cherry Hill.”

Jenkins counters by arguing that HANH had a non-delegable duty to maintain the subject premises in a safe condition.   However, she offers no evidence in support of this position.   HANH replies that the non-delegable duty doctrine only applies to those in possession and control of the premises at the time of an alleged incident.

Practice Book § 17-46 provides:  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.   Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”   HANH has failed to attach a sworn or certified copy of the contract between HANH and Cherry Hill to its motion.¹  Thus, HANH's only offerings of evidence in support of its motion that the court must consider are the statements contained in Dubois-Walton's affidavit.

A party's conclusory statements, “in [an] affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).  “Averments contained in an affidavit that are merely denials of the allegations in a complaint are an insufficient basis for the rendition of summary judgment ․” (Citations omitted;  internal quotation marks omitted.)   Hastings v. Ground Round, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0456864 (March 1, 2004, Jones, J.) (defendants' conclusory affidavits insufficient to establish ownership, possession or control of premises).

The statements in the affidavit offered by HANH that it “had turned over control of the property ․ had no responsibility for inspecting the premises, maintaining the premises, including ice and snow and any other issues ․ and was not in possession of the premises” are conclusory in the context of the present case and, therefore, are insufficient to establish that no genuine issue of material fact exists.   Thus, HANH's sole evidentiary basis for its motion becomes its averment in the affidavit that Cherry Hill “had erected a fence around the development and the area was closed to the public.”   HANH's statement that a fence had been erected, without more, is insufficient to meet its burden of establishing that there are no genuine issues of material fact in the present case.   Although restricting and allowing entry onto a premises may be considered for ascertaining control over said premises, the presence of a fence around the housing development, without more, is insufficient to meet HANH's burden.   Even though the affidavit states that the development was closed to the public, there is no indication in the record that HANH was excluded from the property.²  Further, the restriction of entry onto property is only one of many factors that the court may consider in assessing whether a party maintained control of a premises.   Standing alone, HANH's claim with regard to Cherry Hill erecting a fence around the development has not established that HANH relinquished its power or authority to manage, superintend, direct or oversee the area of the site where Jenkins was injured.

Although Jenkins has not presented any evidence to contradict HANH's evidentiary showing, “[r]etention of control is essentially a matter of intention to be determined in the light of all the significant circumstances.”  Stokes v. Lyddy, 75 Conn.App. 252, 261, 815 A.2d 263 (2003).  “Summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  (Emphasis added;  internal quotation marks omitted.)  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).   Viewing the evidence presented in a light most favorable to Jenkins, HANH has failed to establish that there is no genuine issue of material fact as to whether it fully relinquished control of the subject premises.   Therefore, this court denies HANH's motion for judgment.

Robinson, A., J.

FOOTNOTES

FN1. Dubois-Walton's affidavit refers to an agreement between Cherry Hill and HANH entered into on November 30, 2006.   The court file contains a copy of a contract, dated November 30, 2006, attached to HANH's third-party complaint against Cherry Hill. While this court may take judicial notice of documents in the court file, (See Borkowski v. Borkowski, 228 Conn. 729, 746 n.6, 638 A.2d 1060 (1994)), the contract has not been properly authenticated or certified in order to establish that it is the actual agreement referenced in the affidavit.  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46.   As such, the court will not consider the agreement attached to the third-party complaint for purposes of resolving the present motion..  FN1. Dubois-Walton's affidavit refers to an agreement between Cherry Hill and HANH entered into on November 30, 2006.   The court file contains a copy of a contract, dated November 30, 2006, attached to HANH's third-party complaint against Cherry Hill. While this court may take judicial notice of documents in the court file, (See Borkowski v. Borkowski, 228 Conn. 729, 746 n.6, 638 A.2d 1060 (1994)), the contract has not been properly authenticated or certified in order to establish that it is the actual agreement referenced in the affidavit.  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46.   As such, the court will not consider the agreement attached to the third-party complaint for purposes of resolving the present motion.

FN2. HANH's counsel argued this point during oral argument.   But, the unsupported arguments of counsel are insufficient to meet its burden..  FN2. HANH's counsel argued this point during oral argument.   But, the unsupported arguments of counsel are insufficient to meet its burden.

Robinson, Angela C., J.