Salvatore DeFrancesco v. SNET (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 119) PROCEDURAL AND FACTUAL BACKGROUND

The plaintiff, Salvatore DeFrancesco, commenced the present action by service of process against the defendants, Southern New England Telephone Corporation (hereinafter SNET) and American Telephone and Telegraph Company (hereinafter AT & T), on October 31, 2008.   The operative complaint is the substituted version filed on January 19, 2010.   It alleges the following facts.   Prior to December 28, 2007, the defendants caused overhead cables to be suspended along the telephone poles lining North High Street in East Haven.   The cables were wrapped in insulating material, and thin metal wiring was wrapped around the insulating material in order to secure it to the cables.   Prior to December 28, 2007, part of the wiring broke and unraveled, resulting in a long coil of thin metal wiring that hung from the overhead cable to which it was attached to spill down into the roadway.   The plaintiff was riding his bicycle on North High Street on December 28, 2007 when the coil of wiring ensnared the plaintiff's bicycle.   The plaintiff was thrown off his bicycle and onto the roadway and as result, sustained serious injuries.

The substituted complaint sounds in two counts of negligence, one against each defendant.   Specifically, the plaintiff alleges that each of the defendants was negligent in one or more of the following ways:  “a) in that its subsidiaries, agents and/or employees failed to properly install the overhead cables so that they would not cause a safety hazard to people passing beneath them;  b) in that its subsidiaries, agents and/or employees failed to properly wrap the metal wiring around the cables so that the wiring would not unravel and spill down into the roadway;  c) in that its subsidiaries, agents and/or employees failed to use a type of wire that would not break and unravel once exposed to the elements;  d) in that its subsidiaries, agents and/or employees failed to properly inspect the cables to make sure they did not pose a safety hazard;  e) in that its subsidiaries, agents and/or employees failed to properly maintain the overhead cables to make sure the wiring securing the insulating material was in good condition and did not pose a safety hazard;  f) in that its subsidiaries, agents and/or employees failed to warn the plaintiff of the defect they had created when they improperly hung the overhead cables with defective wiring;  and g) in that its subsidiaries, agents and/or employees failed to take reasonable precautions to keep their equipment in safe working order.”

The defendants filed the present motion for summary judgment accompanied by a memorandum of law in support thereof and exhibits on March 11, 2010.   The plaintiff filed an objection to the motion accompanied by a memorandum of law in support thereof and exhibits on June 7, 2010.   The court heard the matter at short calendar on August 2, 2010.

DISCUSSION

“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).  “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 essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).  “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).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves 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 ․ [T]he conclusion of negligence is necessarily one of fact.”  (Internal quotation marks omitted.)   Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

The defendants move for summary judgment on the ground that they are entitled to a judgment as a matter of law because there is no genuine issue of material fact that they had neither actual nor constructive notice of the broken, unraveled wiring that ensnared the plaintiff's bicycle.   The defendants argue that the plaintiff must be able to establish such notice in order to proceed with his negligence claim.   In support of their motion, the defendants direct the court's attention to the plaintiff's May 27, 2009 deposition, in which the plaintiff stated that he had never seen the broken, unraveled wiring prior to the incident and that he did not know how long the wiring had been in its broken, unraveled state.   Defendants' Ex. A. The defendants also submit an affidavit given by a SNET employee, who attests that the defendants had no actual or constructive notice of any broken, unraveled wiring hanging from any overhead cable, nor had they received any complaints of any such wiring, prior to the time of the incident.   Defendants' Ex. B.

The plaintiff opposes the motion by arguing that the defendants' motion does not address the negligence allegations in the substituted complaint that are based upon the defendants' affirmative conduct rather than their failure to inspect, maintain, prevent and/or warn.   The plaintiff directs the court's attention to the legal principle that a plaintiff who alleges that a defendant was negligent because it created an injurious condition need not prove that the defendant had actual or constructive notice of such condition.   In support of his opposition, the plaintiff submits AT & T's September 29, 2009 responses to his supplemental interrogatories, in which AT & T states that the insulating material and wiring involved in the incident were installed in the late 1990s.   Plaintiff's Ex. 1. The plaintiff also submits transcript pages from the December 8, 2009 deposition of Peter Grippo, the AT & T employee who repaired the broken, unraveled wiring at issue.¹  The plaintiff focuses on the following exchange between Grippo and plaintiff's counsel:  “Q:  I am asking you to assume a hypothetical question.   Assume for a minute that the initial installation was defective for whatever reason.   It wasn't done correctly.   Would you agree that that would have been AT & T's responsibility?   A:  If it wasn't done right?   Sure.” Plaintiff's Ex. 2.

The court agrees with the plaintiff.   The present action is similar to Fuller v. First National Supermarkets, Inc., 38 Conn.App. 299, 661 A.2d 110 (1995), a slip and fall action in which the defendant argued on appeal that the trial court had erred by failing to instruct the jury that the plaintiff bore the burden of proving the defendant's actual or constructive notice of the condition that caused her injury.   The Appellate Court affirmed the trial court's decision and noted:  “For the plaintiff to recover for the breach of a duty owed to her as a business invitee, she had to allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her fall ․ If the plaintiff, however, alleges an affirmative act of negligence, i.e., that the defendant's conduct created the unsafe condition, proof of notice is not necessary.”  (Citations omitted.)   Id., 301;  See also Kelly v. Stop and Shop, Inc., 281 Conn. 768, 795, 918 A.2d 249 (2007).   The court concluded that the plaintiff's complaint could be read to allege that the defendant was liable for its affirmative conduct, as opposed to its ownership of the site where the plaintiff sustained her injury.

The defendants in the present action base their motion for summary judgment on their interpretation of the plaintiff's substituted complaint as sounding only in premises liability.   The plaintiff's substituted complaint, however, contains three negligence allegations based on the defendants' affirmative act of negligence.   Specifically, the plaintiff alleges that the defendants installed the cables at the site of the incident negligently, wrapped the wiring that ensnared his bicycle negligently, and negligently chose the wiring that was used at the site of the incident.   The defendants' motion, memorandum of law in support thereof and exhibits do not address any of these allegations.   There is no dispute that the defendants installed the cables at the site of the incident and wrapped them with the wiring that ensnared the plaintiff's bicycle.   See Plaintiff's Ex. 1. Genuine issues of material fact remain with respect to whether the defendants performed their work with due care, and there is thus no dispute that proof of notice is unnecessary for the plaintiff to proceed with his claim.   In fact, the defendants conceded at oral argument that the issue of notice is irrelevant under the plaintiff's alternate theory of liability.

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.”  Zielinski v. Kotsoris, supra, 279 Conn. 318.  “The burden is on [the] defendant to negate each claim as framed by the complaint.”  Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).   The defendants in the present action have failed to meet their initial burden as the movants because genuine issues of material fact still exist with respect to the manner in which they installed the cables, chose the wiring and wrapped the wiring around the cables.   Because such genuine issues of material fact still exist, the defendants cannot negate the plaintiff's negligence claims, as they are framed in the substituted complaint.²  The court therefore denies the defendants' motion for summary judgment.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. These transcript pages are uncertified.   This court, however, has previously considered uncertified deposition testimony in deciding a motion for summary judgment when the opposing party did not object to it.   See Vaicunas v. Travali Construction, Superior Court, judicial district of New Haven, Docket No. CV 07 5012326 (May 14, 2010, Wilson, J.) (“In considering documents that have been submitted in support of or in opposition to a motion for summary judgment, the purview of the court is limited to those that would be admissible at trial.  New Haven v. Pantani, 89 Conn.App. 675, 680, 874 A.2d 849 (2005).   Nevertheless, where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (trial court did not abuse its discretion in not considering uncertified deposition testimony).”)   In the present case, neither party objected to any of the exhibits, therefore, the court will consider the pages submitted by the plaintiff of the uncertified deposition transcript of Peter Grippo's testimony..  FN1. These transcript pages are uncertified.   This court, however, has previously considered uncertified deposition testimony in deciding a motion for summary judgment when the opposing party did not object to it.   See Vaicunas v. Travali Construction, Superior Court, judicial district of New Haven, Docket No. CV 07 5012326 (May 14, 2010, Wilson, J.) (“In considering documents that have been submitted in support of or in opposition to a motion for summary judgment, the purview of the court is limited to those that would be admissible at trial.  New Haven v. Pantani, 89 Conn.App. 675, 680, 874 A.2d 849 (2005).   Nevertheless, where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (trial court did not abuse its discretion in not considering uncertified deposition testimony).”)   In the present case, neither party objected to any of the exhibits, therefore, the court will consider the pages submitted by the plaintiff of the uncertified deposition transcript of Peter Grippo's testimony.

FN2. The plaintiff concedes in his memorandum that his allegations of the defendants' failure to inspect, maintain, prevent and/or warn “would arguably ․ require the plaintiff to demonstrate constructive notice in order to prevail at the time of trial.”  “The court need not address this issue for purposes of the present motion for summary judgment, however, because the plaintiff's complaint survives the motion on the plaintiff's alternative theory of negligence ․” Adiletta v. Reckson Associates Realty Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 0083135 (March 12, 2007, Esposito, J.)..  FN2. The plaintiff concedes in his memorandum that his allegations of the defendants' failure to inspect, maintain, prevent and/or warn “would arguably ․ require the plaintiff to demonstrate constructive notice in order to prevail at the time of trial.”  “The court need not address this issue for purposes of the present motion for summary judgment, however, because the plaintiff's complaint survives the motion on the plaintiff's alternative theory of negligence ․” Adiletta v. Reckson Associates Realty Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 0083135 (March 12, 2007, Esposito, J.).

Wilson, Robin L., J.