Shabbir Khan v. Quinnipiac University et al. (2010)

MEMORANDUM OF DECISION ON DEFENDANT TOWN'S MOTION FOR SUMMARY JUDGMENT

(1)

In this case the plaintiff alleges by way of complaint and deposition testimony that at around 11 p.m. on March 2, 2007 he was driving his car in a southerly direction on Hogan Road which is south of that road's intersection with Mount Carmel Avenue in Hamden.   The plaintiff alleges that at that time and for a time prior thereto the road was dangerous and defective due to an accumulation of ice and snow.   As a result of this condition of the road, the plaintiff claims he lost control of his car and was injured.

Count one of the complaint asserts a claim against the town under section 13a-149 of the general statutes.   The town has filed a motion for summary judgment against this count.

(2)

The defendant town bases its motion on the argument is barred by the so-called “storm in progress” doctrine.   The standards to be applied in deciding a motion for summary judgment are well established.   If a material issue of fact is present, the motion should not be granted because a party has a constitutional right to a trial.   If no such disputed issue exists, the court should grant the motion to avoid the burden and expense of litigating a claim that does not have merit.

The leading case in this area is Kraus v. Newton, 211 Conn. 191 (1989).   In that case a meter reader went to the defendant's premises and while descending stairs at the property fell-the handrail and stairs “were covered with ice.”   The court agreed with the Appellate Court's jury instructions to the effect that “a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.   To require a landlord or other invitee to keep walks and steps clear of dangerous accumulations of ice, sleet, or snow or to spread sand or ashes while a storm continues is inexpedient and impractical.”   The court went on to note that its decision does not foreclose instructions to the jury on appropriate evidence.   As to whether a storm has ended or whether a plaintiff's injury has resulted from new or old ice, id. pp. 197-98.

Interestingly enough the court could find no Connecticut appellate or trial court cases which have explicitly held that the Kraus storm in progress doctrine applies to shield municipalities from liability for accidents that have occurred on slippery sheets where ice and/or snow have accumulated.   Common sense would seem to dictate that the doctrine should also apply when suit is brought against municipalities.   A New York appellate division case, citing Court of Appeals cases explicitly holds that:  “Under the storm in progress rule, the city generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an on going storm, or for a reasonable time thereafter,” Mazzella v. City of New York, 72 A D 3d 755, 756 (2010).

(3)

In support of its motion the town has submitted a report prepared by a Robert Cox who describes himself as “a professional meteorologist specializing in forensic meteorology.”   He states he has reviewed certain weather records:

2.  That in connection with the above-captioned matter, I have reviewed the following weather records:  (a) The Record of River and Climatological Observations from Ansonia, Bridgeport, Norwich, Shuttle Meadow Reservoir, and Stamford, CT for March 2007;  (b) The Record of River and Climatological Observations from Bridgeport, Shuttle Meadow Resrvoir, and Woodbury for February 2007;  (c) The publication Local Climatological Data from Meriden, CT for February and March of 2007;  and (d) Local Climagtological Data from New Haven for March of 2007.

Mr. Cox then goes on to say that he has reached conclusions “to a reasonable degree of meteorological probability regarding the meteorological conditions existing at the location of and during the time period corresponding to the incident at issue ․”

He then states his conclusions:

“4. That based on my review of the foregoing data, I have reached the following conclusions to a reasonable degree of meteorological probability:

(a) that any ice that may have existed on the roadway surface in the area of the subject accident would have formed shortly before the accident in so much as climatological conditions would not have permitted ice to form on said roadway surfaces prior to 9:00 p.m. on the night in question;

(b) that on the night of March 2, 2007 at the location of the incident, ice formation commenced around 9:00 p.m. as the temperature dropped to freezing, cause any standing water or moisture from recent rainfall to begin to turn to ice;

(c) that from 9:00p.m. to midnight of the night in question, fog or mist was present with sub-freezing temperatures, which contributed to a new layer of ice formation on surfaces in the area of the accident;

(d) that the climatological factors existing on the night of the accident produced the possibility for icy conditions developing throughout the area of the accident as opposed to isolated conditions in any one area;  and

(e) that at the time of the accident at issue in this action the occurrence of the weather event the produced any ice formation was ongoing and in progress;”

The court agrees with the defendant that the formal objection the plaintiff makes to reliance on the expert testimony of Mr. Cox is misplaced.   If in fact an expert report is submitted in support of a motion for summary judgment, it cannot be opposed by a general statement that the jury can accept or reject the expert's testimony and opinion.   A trier of fact can reject an expert's opinion if it rests on facts that the trier finds are not established.   Here the plaintiff does not contest the facts the expert relies upon.   That being the case the plaintiff would be obligated the present an expert opinion of the defendant's expert or at least point to inconsistencies in the opinion or invalidity of assumptions made or conclusions reached.   None of that was done by the plaintiff.

Having said all that, however, the court has difficulty in granting this motion for several reasons.   For one thing Mr. Cox refers to his occupation as being that of a professional meteorologist specializing in forensic meteorology but no indication of education, training or experience is offered to support these claims-certainly the trier of fact or judge weighing a purported expert's opinion may examine and evaluate his qualifications.

Also paragraph 2 lists the records Mr. Cox relies upon.   Only the last of four reports refers to a town contiguous to Hamden.   In the court's trial experience meteorologists can rely on records from towns multiple miles away from a site at issue but the court cannot import its personal experience or speculation into the decisional process on a technical matter.   The report submitted here does not explain how these records from non-contiguous towns can properly be relied upon to show weather conditions at a specific point in Hamden, Connecticut where the accident happened.

Perhaps even more to the point none of the conclusions reached in paragraph 4 of the report Mr. Cox submitted has anything necessarily to do with Kraus and the storm in progress doctrine.

A “weather event” such as the propensity of water to freeze on a road surface given a drop in temperature does not equate with a storm event.   In Kraus the court said:  “To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient or unpractical,” 211 Conn. at page 197.   On the previous page the court said:

There was no evidence in the present case of a preexisting danger from a previous storm.   There was however, direct evidence from which the jury reasonably could have found that the storm was on going.   On cross examination defense counsel asked the plaintiff, ‘Sir, at the time that this accident occurred when you fell down, isn't it true that there was a freezing rain storm in progress?’   The plaintiff replied, ‘Yes, it was.’

The type of storm discussed in Kraus was one of snow, ice or sleet;  it wasn't contemplating a rule to apply to a mere rain storm where the danger arises from falling temperatures and their effect on moisture deposited by the rainstorm.   Paragraph (e) of the report does state that from 9 p.m. to midnight fog or mist was present with subfreezing temperatures which contributed a new layer of ice.   But fog or mist cannot be characterized as a storm.

The court is not saying that if the more technical objections to the report are cleared up, the observations of this expert are not powerful reasons for a jury to bar liability.   But the court cannot fit the observations made under the rubric of Kraus.   For example, if there is moisture on the ground and a municipality is aware or should be aware of the fact that temperatures were or were predicted to fall perhaps sanding procedures should be started immediately, sanding might prevent slippery conditions even if moisture from “fog and mist” was likely to deposit more ice-but is this of any importance if a town has scores of rules of highway to be concerned with?   In any event too many factual issues remain in a situation not falling directly within Kraus to argue against granting this motion.

Therefore, the motion for summary judgment is denied.

Corradino, J.T.R.

Corradino, Thomas J., J.T.R.