Mary Orten, Executrix of the Estate of Larry Orten et al. v. 308 (2010)

RULING ON MOTIONS FOR SUMMARY JUDGMENT (# # 126.00 & 127.00)

On June 12, 2009, the plaintiff, Mary Orten, commenced this action against the defendant, Veterans of Foreign Wars, Post # 308.   On September 28, 2009, the plaintiff filed the operative amended complaint.   In her three-count complaint, the plaintiff, who is suing as the executrix of the estate of Larry Orten and individually, alleges the following facts.   On January 2, 2009, Larry Orten, the plaintiff's husband, was leaving the defendant's premises when he slipped and fell on ice that had accumulated in the defendant's parking lot.   The defendant and its agents, servants and employees were negligent in that they, inter alia, failed to properly maintain the parking lot, failed to remove ice from the parking lot in a timely manner and failed to warn the plaintiff about the ice in the parking lot.   As a result of the defendant's negligence, Larry Orten suffered a severe anoxic brain injury and eventually died from blunt head force trauma on January 12, 2009.   In count one, the plaintiff, as executrix, is stating a cause of action pursuant to General Statutes § 52-555 (actions for injuries resulting in death).   In count two, the plaintiff, individually, states a cause of action for loss of consortium.   In count three, the plaintiff, individually, states a cause of action for bystander emotional distress.

On March 2, 2010, the defendant filed the present motions for summary judgment (# # 126/127).   The motions are identical and were, in all likelihood, filed twice by mistake.   The defendant moves for summary judgment on count one on the grounds that the plaintiff has failed to establish causation and proximate cause, as they are too speculative and based solely on conjecture and surmise.   The defendant moves to strike the second and third counts on the ground that those claims are derivative of the negligence claim.

“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).  “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).  “In deciding a motion for summary judgment, the trial court must review the evidence in light most favorable to the nonmoving party ․ The test is whether a party would be entitled to a directed verdict on the same facts.”  Serrano v. Burns, 248 Conn. 419, 424 (1999) (citations omitted;  internal quotation marks omitted).

There were no witnesses to Larry Orten's alleged fall.   He was found by his wife who had left the establishment earlier to warm up the car.   Larry Orten was found unconscious and bleeding from a wound to the head which he apparently sustained from the fall.   Appended to the plaintiff's reply brief were police photographs taken at the scene which showed an accumulation of ice and snow as well as the blood stain from Larry Orten's wound.   While it is true that there is no direct evidence showing that Larry Orten slipped on the ice striking his head, “[c]ircumstantial evidence ․ may provide a basis from which the causal sequence may be inferred.”  Hall v. Winfrey, 27 Conn.App. 154, 159, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992).  “[T]riers of fact must often rely on circumstantial evidence and draw inferences from it.   There is no rule of law which forbids the resting of an inference on facts whose determination is the result of other inferences.   Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis.   It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.”  Blados v. Blados, 151 Conn. 391, 395, 198 A.2d 213 (1964).

The court finds that genuine issues as to material facts surrounding causation exist.   See Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989);  Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).   Defendant's motion for summary judgment is therefore ordered DENIED.

Michael G. Maronich, Judge

Maronich, Michael G., J.