Natasha Moore v. LLC (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 102

The plaintiff, Natasha Moore, commenced the present action by service of process against the defendants, Orange Enterprise, LLC, Tilcon Connecticut, Inc., the state of Connecticut's Department of Transportation and the city of West Haven.   The four-count complaint alleges the following facts.   On May 16, 2008, the plaintiff tripped and fell on a cracked, uneven paved surface located at Forest Plaza in West Haven, and was injured as a result.   The second count of the complaint is against Tilcon Connecticut, Inc., the defendant who brings the present motion (hereinafter the defendant), and sounds in negligence.   The plaintiff specifically alleges in relevant part:  “At some point immediately prior to the fall ․ the defendant ․ had conducted construction activities immediately adjacent as a contractor of the State of Connecticut and/or City of West Haven and as a result of its construction activities, of which it failed to warn passerby, as a result of which negligence the plaintiff was caused to fall.”

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”   (Internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 99-100 n.7, 931 A.2d 859 (2007).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue 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.”   (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “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 ․ 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 ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, supra, 279 Conn. 318-19.

The defendant moves on the ground that it is entitled to a judgment as a matter of law because it performed no work on property located at or adjacent to Forest Plaza until June 25, 2008, more than one month after the incident at issue.   In support of its motion, it has submitted an affidavit given by Chris August, a paving supervisor, who avers:  “Tilcon did not enter into a contract with any person or entity, including Orange Enterprise, LLC, to pave any portion of 560 Forest Road in West Haven, Connecticut, in April or May 2008.”   Defendant's Ex. A, Affidavit of Chris August.   August also avers:  “Tilcon did conduct paving operations on Forest Road (a/k/a Route 122) in West Haven, Connecticut, but did not commence such operations until June 25, 2008.”  Id. The plaintiff objects to the motion by making two arguments.   First, the plaintiff contends that the defendant has not met its initial burden of demonstrating that there is no genuine issue of material fact because August's affidavit is not based upon personal knowledge and therefore is insufficient for summary judgment purposes.   Second, the plaintiff requests that the court grant her a continuance to conduct additional discovery, pursuant to Practice Book § 17-47.¹

“Issues of negligence are ordinarily not susceptible of 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).  “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment [however] because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 478-79, 822 A.2d 1202 (2003).  “[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ․ The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.”  Id., 479.

In the present action, the court begins its analysis of whether the defendant owed a duty of care to the plaintiff by considering the affidavit submitted by the defendant.   The plaintiff argues that the affidavit cannot support the defendant's motion because the affiant “just says he knows because he knows” and provides no facts with respect to business records upon which he relies, his job duties and responsibilities and his personal observations of Forest Road on June 25, 2008.   The plaintiff, however, provides no legal support for her criticism of the affidavit.  “Generally, affidavits must be made on the affiant's personal knowledge of the facts alleged in the petition.   The affidavit must in some way show that the affiant is personally familiar with the facts so that he could personally testify as a witness ․ Black's Law Dictionary (9th Ed.2009) defines ‘competence’ as ‘[a] basic or minimal ability to do something;  qualification, esp. to testify.’  “ (Citation omitted.)   State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 571-72 (2010).   Based on this standard, the court concludes that the affidavit submitted by the defendant is sufficient with respect to the affiant's competency and personal knowledge.   The affiant attests under oath that he has personal knowledge of the fact that the defendant did not commence construction on Forest Road until after the date of the incident at issue, and his position as a paving supervisor makes him qualified to testify to this fact.

The affidavit conclusively establishes the defendant performed no work on property located at or adjacent to Forest Plaza until June 25, 2008.   Thus, there is no genuine issue of material fact with respect to whether the defendant knew or should have known of the situation at the location where the plaintiff sustained her injury.   The plaintiff has not submitted any contradictory evidence to demonstrate otherwise.   An ordinary person in the defendant's position, knowing what the defendant knew or should have known, would not have anticipated that harm of the general nature of that suffered by the plaintiff was likely to result.   Thus, the defendant is entitled to a judgment as a matter of law, and the court grants its motion for summary judgment.

The court also denies the plaintiff's request for a continuance under § 17-47.  “A party opposing a summary judgment motion pursuant to § 382 [now § 17-47] on the ground that more time is needed to conduct discovery bears the burden of establishing a valid reason why the motion should be denied or its resolution postponed, including some indication as to what steps that party has taken to secure facts necessary to defeat the motion ․ The trial court has wide discretion under § 382 to determine whether the party seeking additional time to conduct discovery already has had a sufficient opportunity to establish facts in opposition to the summary judgment motion ․” (Citations omitted.)   Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 488-90, 697 A.2d 680 (1997);  see also Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 229-30, 253 A.2d 22 (1968).   In the present action, the plaintiff has provided no indication as to what steps she has taken to secure facts necessary to defeat the defendant's motion.   Her attorney avers that the plaintiff's previous attorney learned in an investigation “that as of May 23, 2008, curbing had been dug up at the scene of the accident.”   Without further explanation or information, however, the court cannot deem this averment to be a fact that is “essential to justify opposition.”

Accordingly, for the foregoing reasons, the defendant's motion for summary judgment on count two of the plaintiff's complaint is granted.

Keegan, J.

FOOTNOTES

FN1. Practice Book § 17-47 provides:  “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”.  FN1. Practice Book § 17-47 provides:  “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”

Keegan, Maureen M., J.