Richard Pesce v. Town of Goshen et al. (2010)

MEMORANDUM OF DECISION

ISSUE

Whether the court should grant the defendant's motion for summary judgment on the grounds that the defendant had no obligation to maintain a wooden “catch basin” grate located on her property and that she is entitled to judgment as a matter of law.

FACTS

The plaintiff, Richard Pesce, brings this action against the town of Goshen, various municipal employees,¹ and Darlene Martin, the owner of certain property located at 18 Apley Road in Goshen, for injuries allegedly sustained when he fell through a wooden catch basin grate while performing landscaping work on Martin's property.   In the eighth count of his complaint, filed October 23, 2009, Pesce alleges that Martin's negligence caused, and contributed to his injuries.

On June 29, 2010, Martin both answered the complaint and filed a motion for summary judgment as to the complaint's eighth count on the ground that she is entitled to judgment as a matter of law.   She has submitted a memorandum of law in support of the motion.   Pesce filed an objection to Martin's motion and a memorandum of law in opposition on July 30, 2010, and, on August 5, 2010, Martin filed a reply to Pesce's opposition.   The motion was heard at the short calendar on August 16, 2010.

ANALYSIS

“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).

Martin argues that there are no genuine issues of material fact that the sole cause of Pesce's injuries was the catch basin grate giving way and that Goshen was the party responsible for maintaining and repairing the catch basin.   In support of her motion, Martin has submitted excerpts from the town's responses to interrogatory requests, excerpts from Pesce's deposition transcript and her own interrogatory responses.   Pesce counters that Martin has failed to establish that Goshen was solely responsible for the maintenance and inspection of the subject catch basin, but offers no evidence in support of his opposition.   Martin replies that Pesce has failed to come forward with any evidence suggesting that Martin had a duty to maintain the catch basin.

“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 ․” Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).  “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).

It is axiomatic that in order to prove a prima facie case of negligence, a plaintiff must establish the existence of a duty on the part of the defendant, a breach of that duty, and that the breach of said duty proximately caused the plaintiff's injuries.   See, e.g., Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008).  “The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property.”   Salaman v. Waterbury, 246 Conn. 298, 304-05, 717 A.2d 161 (1998).  “A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  Kurti v. Becker, 54 Conn.App. 335, 338, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).  “Under the common law, a possessor of land owes an invitee two separate duties:  the duty to inspect and maintain the premises to render them reasonably safe, and the duty to warn of dangers that the invitee could not reasonably be expected to discover.”  Gargano v. Azpiri, 110 Conn.App. 502, 510, 955 A.2d 593 (2008).

Under the present facts, it is unclear who possesses the area where the injury occurred, as Martin's evidentiary submissions merely establish that Goshen had a duty to maintain and inspect the subject catch basin.   There is no indication as to the nature of Goshen's claimed duty, be it contractual, statutory or otherwise.

Moreover, in the eighth count of the complaint, Pesce alleges that Martin “was the owner and/or in possession of the property known as 18 Apley Road” and that “while mowing grass at 18 Apley Road ․ he stepped on a catch basin cover located on such property.”   Although Martin claims in her responses to Pesce's interrogatories that Goshen owns the subject catch basin and that she owns the surrounding property at 18 Apley Road, such statement is conclusory in the present context.   A party's conclusory statements, amounting to mere “[d]enials of the allegations in [a] complaint are an insufficient basis for the rendition of summary judgment.”  Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995);  see Cope v. Belisle, Superior Court, judicial district of New London, Docket No. CV 04 568473 (March 7, 2005, Hurley, J.T.R.) (“[c]onclusory statements or mere denials of allegations in the complaint ․ provide an insufficient basis for the rendition of summary judgment”);  Hastings v. Ground Round, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0456864 (March 1, 2004, Jones, J.) (defendants' conclusory affidavits insufficient to establish ownership, possession or control of premises).

Viewing the evidence in a light most favorable to Pesce, issues of fact preclude entry of summary judgment.   In particular, it is unclear whether Martin owned, controlled or possessed the subject catch basin at the time of the alleged injury, whether Martin erected the allegedly defective catch basin or whether Martin knew of the catch basin's condition.   As such issues of fact could potentially subject Martin to liability for negligence, therefore her motion for summary judgment as to the eighth count of the complaint is hereby denied.

BY ORDER OF THE COURT,

Roche, J.

FOOTNOTES

FN1. The additional defendants are David Bonaguide, chairman of Goshen's water pollution control authority, Ed Perry, a supervisor at Goshen's department of public works and Bill Gelormino, the department of public works' working road foreman..  FN1. The additional defendants are David Bonaguide, chairman of Goshen's water pollution control authority, Ed Perry, a supervisor at Goshen's department of public works and Bill Gelormino, the department of public works' working road foreman.

Roche, Vincent E., J.