Barbara Baker v. City of New Haven et al. (2010)

MEMORANDUM OF DECISION

On July 17, 2009, the plaintiff, Barbara Baker, filed a two-count complaint sounding in negligence against the defendants, the city of New Haven, Connecticut and Winthrop Properties, LLC (Winthrop).¹  The plaintiff alleges that on December 18, 2007, she was walking on the public sidewalk adjacent to the premises owned by Winthrop located at 1553 Chapel Street in New Haven.   According to the complaint, the plaintiff slipped and fell on the sidewalk due to an accumulation of ice and snow.   The plaintiff alleges that Winthrop was in control of and responsible for the maintenance of the public sidewalk and that the sidewalk was in defective condition.

On June 28, 2010, Winthrop filed a motion for summary judgment and a supporting memorandum of law arguing that it is entitled to summary judgment as a matter of law because there are no genuine issues of material fact concerning the location of the plaintiff's fall.   In support of its motion, Winthrop submits a copy of the plaintiff's deposition transcript.²  On September 9, 2010, the plaintiff filed a memorandum of law objecting to Winthrop's motion for summary judgment.   The plaintiff argues that there are genuine issues of material fact concerning the location of the incident.   In support, the plaintiff submits her own affidavit, photographs depicting the public sidewalk, and a diagram of the vicinity where the plaintiff's fall occurred.³  The matter was heard on the short calendar on September 27, 2010.

“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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).  “[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.   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 under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

In the present case, Winthrop argues that it is entitled to summary judgment as a matter of law because there is no genuine issue concerning the location where the plaintiff fell.   Winthrop submits the plaintiff's deposition testimony in which the plaintiff repeatedly testifies that she fell on the street, not the public sidewalk maintained by Winthrop.   The plaintiff, however, argues that summary judgment is not appropriate because there are genuine issues concerning the location of her fall.   In support of her argument, the plaintiff submits her own affidavit attesting that she was confused at her deposition and she made a mistake when she testified that she fell in the street.   The plaintiff further attests:  “I don't know why I testified at my deposition that I fell in the street because I was walking on the sidewalk when I slipped and fell.”   During oral argument, Winthrop directed the court's attention to the federal “sham affidavit” rule ⁴ arguing that the plaintiff's affidavit should be disregarded because it contradicts her deposition testimony.

Under the federal sham affidavit rule, “a court, under some circumstances, disregards an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior sworn deposition testimony ․ [A sham affidavit is an] affidavit that contradicts clear testimony previously given by the same witness, [usually] used in an attempt to create an issue of fact in response to a motion for summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 616-17, 2 A.3d 963 (2010).   Our courts, however, have not taken the opportunity to adopt the sham affidavit rule, stating instead that “[t]he usual legal remedy for inconsistent statements by a witness is for the adversary to point them out for purposes of impeaching the witness' credibility;  such an inconsistency is not ordinarily a ground for precluding the witness' testimony entirely.  [The court] sees no reason for a different rule to prevail on a summary judgment proceeding, particularly given the fact that in such a proceeding the evidence is to be viewed in a light most favorable to the nonmoving party.”  Id., 617.   Thus, in a summary judgment proceeding, affidavits which contradict the affiant's prior sworn deposition testimony should be considered and, if believed, taken together with all other evidence to determine whether a genuine issue of material fact exists.   See Id., 621.

In the present case, in support of its motion for summary judgment Winthrop submits the plaintiff's deposition testimony in which the plaintiff testifies that she was walking on the roadway, not the public sidewalk maintained by Winthrop, when she fell.   On the other hand, the plaintiff submits her own affidavit attesting that she was walking on the public sidewalk when she fell.   Additionally, the plaintiff submits a diagram created by an investigator based on his interview with the plaintiff.   The diagram shows an ‘x’ on the public sidewalk denoting the location where the plaintiff fell.   Furthermore, the plaintiff's complaint alleges that she was walking on the public sidewalk when she fell and was injured by the defective sidewalk.   Viewing the complaint, deposition testimony and affidavit in the light most favorable to the plaintiff, a genuine issue of material fact exists which may not be decided in the context of a summary judgment motion.

For the foregoing reasons the motion for summary judgment is denied.

Howard F. Zoarski

Judge Trial Referee

FOOTNOTES

FN1. The city of New Haven did not join in Winthrop's motion for summary judgment or file a separate motion for summary judgment.   As such, this memorandum relates only to Winthrop..  FN1. The city of New Haven did not join in Winthrop's motion for summary judgment or file a separate motion for summary judgment.   As such, this memorandum relates only to Winthrop.

FN2. “[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Conn.Code Evid. § 9-1(a), commentary.   Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466-67, 976 A.2d 23 (2009);  accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   In the present case, there has been no objection to the submission of the uncertified transcript of the plaintiff's deposition..  FN2. “[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Conn.Code Evid. § 9-1(a), commentary.   Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466-67, 976 A.2d 23 (2009);  accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   In the present case, there has been no objection to the submission of the uncertified transcript of the plaintiff's deposition.

FN3. “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.”   Practice Book § 17-46.   In the present case, the plaintiff's affidavit meets this standard and serves to authenticate the photographs and diagram..  FN3. “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.”   Practice Book § 17-46.   In the present case, the plaintiff's affidavit meets this standard and serves to authenticate the photographs and diagram.

FN4. Winthrop referred the court to Raskin v. Wyatt Co., 125 F.3d 55 (2d Cir.1997) and Hayes v. New York City Dept. of Corrections, 84 F.3d 614 (2d Cir.1996)..  FN4. Winthrop referred the court to Raskin v. Wyatt Co., 125 F.3d 55 (2d Cir.1997) and Hayes v. New York City Dept. of Corrections, 84 F.3d 614 (2d Cir.1996).

Zoarski, Howard F., J.T.R.