Peter Owen v. Birol Kilic et al. (2010)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (# 145, 148)

I

FACTS

On October 7, 2009, the plaintiff filed a four-count second amended complaint against Kilic and Muteber ¹ in which he alleges the following facts.   On January 22, 2010, while on duty as a police officer for the Meriden police department, the plaintiff responded to a call to Uptown Pizza located at 300 East Main Street in Meriden, Connecticut to assist in an investigation.²  In the process of responding to the call, the plaintiff slipped and fell on an accumulation of ice in a rear parking area behind Uptown Pizza.   The plaintiff alleges that the area where the accident occurred was open to the public at the time of the incident, that it served a traditional business purpose and that the defendants were negligent in failing to maintain the premises in a reasonably safe condition.

On May 25, 2010, Kilic filed a motion for summary judgment along with a supporting memorandum of law.   Kilic argues that there is no dispute that the plaintiff was acting within the scope of his official duties as a police officer when he entered the premises and therefore, the firefighter's rule treats the plaintiff as a licensee and bars his claim.   Moreover, Kilic argues that there is no dispute that the plaintiff is not entitled to the protection of the “open to the public” exception to the firefighter's rule because the location where the plaintiff fell was not open to the public.   On June 9, 2010, the plaintiff filed an objection to Kilic's motion for summary judgment.

On June 1, 2010, Muteber filed a motion for summary judgment along with a supporting memorandum of law.   In addition to joining in Kilic's motion, Muteber adds that it is entitled to summary judgment because it leases part of the building from Kilic and, as a mere tenant, Muteber does not exercise any ownership or control over the premises.   On July 13, 2010, the plaintiff filed an objection to Muteber's motion for summary judgment.   All parties submitted multiple exhibits.   The court heard oral argument on August 30, 2010.

II

DISCUSSIONAStandard for Summary Judgment

“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).

B

Admissibility of Supporting Documentation

As a threshold matter, the court must determine whether the documents submitted by the parties are admissible as evidence for purposes of the motions before the court.  “[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).  “Practice Book § [17-45], although containing the phrase ‘including but not limited to,’ contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ․ [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment.”  (Internal quotation marks omitted.)  New Haven v. Pantani, supra, 89 Conn.App. 678;  accord Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn.App. 68, 72-73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents ․ be made under oath or be otherwise reliable.”  (Internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied 280 Conn. 917, 908 A.2d 538 (2006).

In the present case, Kilic argues that a copy of the insurance policy covering Muteber d/b/a Uptown Pizza attached to the affidavit of Anthony Balletta ³ and submitted by Muteber in support of its motion for summary judgment should not be considered by the court because it would be inadmissible at trial.   Generally, “[e]vidence that a person was or was not insured against liability is inadmissible upon the issue of whether the person acted negligently or otherwise wrongfully.”   Conn.Code Evid. § 4-10(a).   However, “evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness” is admissible.   Conn.Code Evid. § 4-10(b).  Accordingly, in the present case, the court will consider the copy of the insurance policy because it is properly authenticated and submitted as evidence of control over the premises.

In addition, Muteber submits a copy of the police incident report for the car theft to which the plaintiff was responding when he was injured.  “Police reports are normally admissible under the business records exception ⁴ to the hearsay rule ․” Jurczyk v. John, Superior Court, judicial district of New London, Docket No. CV 09 5011886 (March 1, 2010, Cosgrove, J.).   However, “a police report that is not sworn to, certified, nor in any other way authenticated by an individual with personal knowledge should not be considered in connection with a ruling on a motion for summary judgment.”   Sejdic v. Kirslis, Superior Court, judicial district of Hartford, Docket No. CV 05 4011073 (April 13, 2006, Keller, J.).   Accordingly, in the present case, the court will not consider the police incident report for the car theft because it not sworn to, certified or otherwise properly authenticated.   Likewise, both Kilic and the plaintiff submit the plaintiff's incident report for his slip and fall filed with the Meriden police department.   Although the incident report would likely be admissible under the business records exception, the court will not consider it because it is not sworn to, certified or otherwise properly authenticated.

Next, the plaintiff and the defendants submit uncertified copies of transcripts from the depositions of the plaintiff and Kilic.  “While [a party's] deposition testimony is not conclusive as a judicial admission;  General Statutes § 52-200;  it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”  Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).   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).   Accordingly, in the present case, since there has been no objection to the submission of the uncertified deposition transcripts, the court will consider the depositions of Kilic and the plaintiff.

Finally, the plaintiff and the defendants submit photographs depicting the premises where the plaintiff's incident occurred.  “Before an item of evidence may be admitted, there must be a preliminary showing of its genuineness.   The requirement of authentication applies to all types of evidence, including ․ demonstrative evidence such as a photograph ․” Conn.Code Evid. § 9-1(a), commentary.   In the present case, the court will not consider the copies of the photographs because they lack proper authentication.   All other remaining documents submitted by the parties will be considered as to each motion.

C

Analysis

“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 ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

“[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)   Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

1

Muteber's Duty

In the present case, Muteber argues that it is entitled to summary judgment because there is no genuine issue of material fact that Muteber did not owe a duty to the plaintiff based on its non-ownership of the property where the plaintiff was injured.   The plaintiff, however, argues that summary judgment is not appropriate because there are genuine issues of material fact concerning Muteber's possession and control over the property where the plaintiff slipped and fell.

“In order to assess the duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows ․ Liability for injuries caused by defective premises, however, does not depend on who holds legal title, but rather on who has possession and control of the property ․ Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property.”   (Citations omitted.)  LaFlamme v. Dallessio, 261 Conn. 247, 251-52, 802 A.2d 63 (2002).  “Possession cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.”  (Internal quotation marks omitted.)  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 454, 857 A.2d 439 (2004), quoting Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939).  “Control is a question of fact.”   Szmid v. Brown, Superior Court, judicial district of New Britain, Docket No. CV 09 5012748 (January 6, 2010, Swienton, J.).  “The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee ․ The question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question ․ Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination.”  (Internal quotation marks omitted.)  Silano v. Cumberland Farms, Inc., supra, 85 Conn.App. 453-54.

In the present case, Muteber argues that it is a lessee of the property located at 300 East Main Street (the property) and it does not own or control the outside area where the plaintiff fell.   The following facts are undisputed:  the property is owned by Kilic;  Muteber is a limited liability company formed by Kilic and of which Kilic is a member;  Muteber owns Uptown Pizza;  and Muteber leases part of the property from Kilic for the purpose of operating Uptown Pizza.   A review of Muteber's brief and supporting evidence ⁵ establishes that Kilic was responsible for maintenance of the outside premises, including the removal of ice and snow.   Accordingly, the court concludes that the evidence submitted by Muteber is sufficient to meet its burden of showing the absence of a genuine issue regarding possession and control over the area where the plaintiff was injured.

The burden now shifts to the plaintiff to submit documents establishing the existence of a genuine issue of material fact concerning Muteber's possession and control of the outside premises.   A review of the transcript of Kilic's deposition demonstrates that a genuine issue does exist regarding whether Kilic's actions at the property are carried out as a result of his role as landlord or his operation and management of Muteber and Uptown Pizza.   In his deposition, Kilic testifies that there is no written agreement between himself as the owner of the building and the restaurant, and no lease agreement between himself as the owner and Muteber.   Kilic further testifies that although Muteber pays $1,100 in rent to occupy the property, Muteber does not write a check to Kilic individually and there are no records to show that Muteber pays rent to Kilic as the owner.   Kilic explained:  “I own the pizza [place].   I own the property as well.   It doesn't make sense.   The money comes to me.”   When asked directly if “Muteber [delivers] $1,100 for rent to [him] each month,” Kilic responded:  “No. I don't understand what kind of answer you are expecting from me.   I own the business;  I own the building.”   Moreover, Kilic testifies that there is no understanding between himself and Uptown Pizza as to who is responsible for shoveling the sidewalk in front of the property.   When asked if, in his mind, Kilic views himself and Uptown Pizza as one in the same, Kilic refused to answer.

In addition, the plaintiff argues that Uptown Pizza possesses and controls the outside premises by virtue of its use of the area in connection with operating the restaurant.   The plaintiff submits Kilic's deposition testimony establishing that Uptown Pizza pays for a dumpster located in the rear parking area that is used by the restaurant and the residential tenants of the building, and Uptown Pizza keeps a barrel for used cooking oil in the rear parking area which Uptown Pizza arranges to have emptied by a third party on a regular basis.

After viewing the evidence in the light most favorable to the plaintiff, the nonmoving party, the court finds that there is a genuine issue of material fact as to whether Muteber possesses and controls the premises where the plaintiff was injured.   Kilic's deposition testimony demonstrates that there is some blending of Kilic's role as landlord with his membership in Muteber and, consequently, ownership of Uptown Pizza.   As such, the minds of fair and reasonable persons could reach different conclusions regarding whether Kilic is acting on behalf of Muteber and Uptown Pizza when he performs maintenance on the outside premises.   Moreover, there is some evidence that Uptown Pizza exercises possession and control over the rear parking area.   Accordingly, the court concludes that the evidence submitted by the plaintiff is sufficient to meet his burden of showing a genuine issue of material fact and Muteber's motion for summary judgment on this issue is denied.

2

Firefighter's Rule

“In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee.”  Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).  “The common-law ‘firefighter's rule’ provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee ․ Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him willfully or wantonly.”  (Citation omitted;  internal quotation marks omitted.)  Levandoski v. Cone, 267 Conn. 651, 653-54, 841 A.2d 208 (2004);  see also 2 Restatement (Second), Torts § 345(1) (1965).  “The duty that a ․ [possessor of land] owes to a licensee ․ does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them.”  (Internal quotation marks omitted.)  Morin v. Bell Court Condominium Assn., Inc., supra, 327.

“The most compelling argument for the continuing validity of the rule is the recognition that ․ police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances ․ Such public officers enter the land regardless of the owner's consent;  indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them ․ Recognizing that only invitees may rely on an implied representation of safety, courts have considered it unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict.   There would be an obvious hardship in holding otherwise, because landowners would then be under compulsion to keep all parts of their premises in a condition perhaps uncalled for by the normal use to which the premises are devoted.”  (Citations omitted;  internal quotation marks omitted.)  Id., 328-29.

In the present case, the defendants argue that they are entitled to summary judgment because there is no genuine issue that the plaintiff was acting in his official capacity as a police officer when he slipped and fell and therefore, the firefighter's rule applies to bar the plaintiff's action.⁶  After a review of the plaintiff's deposition transcript, the court finds that the plaintiff was acting in his official capacity as a police officer when he entered the rear parking area behind Uptown Pizza.⁷  Nonetheless, the plaintiff argues that summary judgment is not proper because there are genuine issues concerning whether the “open to the public” exception to the firefighter's rule applies.

“[T]here is an exception to the general rule that licensees are not afforded the implied representation of safety given to invitees ․ The exception provides that ‘the liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee.’  “ (Emphasis in original.)  Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 334, quoting 2 Restatement (Second), Torts § 345(2) (1965).  “A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe.”  Morin v. Bell Court Condominium Assn., Inc., supra, 327.

“[T]he mere fact that an area of private property is not closed to the public does not establish that it is open to the public as a matter of law.”   (Internal quotation marks omitted.)   Segarra v. Electrical Wholesalers, Inc., Superior Court, judicial district of New Haven, Docket No. CV 05 5001341 (May 22, 2007, Holden, J.), citing Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 335.   Rather, “[i]n situations in which the premises have been considered open to the public, there is generally some sort of public function ⁸ or traditional business purpose ⁹ being served.”  Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 335.   In Segarra,¹⁰ the court confronted the question of whether “an open parking lot, with no fences or barriers to prevent ․ members of the general public from traveling upon and through” it and which was used by patrons of other businesses unconnected with the defendants ¹¹ meant that the parking lot was open to the public.   (Internal quotation marks omitted.)  Segarra v. Electrical Wholesalers, Inc., supra, Superior Court, Docket No. CV 05 5001341.   The court explained that merely because “the parking lot was ‘an open parking lot’ does not, under Morin, establish that it was ‘open to the public.’  “ Segarra v. Electrical Wholesalers, Inc., supra, Superior Court, Docket No. CV 05 5001341, see Morin v. Bell Court Condominium Assn., Inc., supra, 323.   However, in Segarra, the plaintiff's “testimony that the parking lot was being used by the patrons of a business [provided] some evidence that it was open to serve some sort of public function or traditional business purpose.”  (Internal quotation marks omitted.)  Segarra v. Electrical Wholesalers, Inc., supra, Superior Court, Docket No. CV 05 5001341.   The court denied summary judgment for the defendants even though it found that the parking lot may have been “held open either by or for other nearby businesses,” explaining that “[r]egardless of the identity of the person or business entity involved in either holding the parking lot open or occupying it at the time of the incident, [the plaintiff] has presented sufficient evidence that, viewed in the light most favorable to the plaintiffs, demonstrates the existence of a disputed issue of material fact, namely whether the parking lot was open to the public in the manner described by the court in Morin.”  Id.

In the present case, the defendants argue that they are entitled to summary judgment because there is no genuine issue concerning whether the rear parking area is an area open to the public.   Kilic argues that the rear parking area is not open to the public because there is no means of entry to Uptown Pizza from the rear and no customers ever walk or drive through the alleyway to reach the business.   Kilic further argues that the rear parking area is considerably more secluded than common stairways of condominiums or common living areas of apartment buildings, both of which have failed to be considered areas open to the public for purposes of the licensee exception.   To support this argument, Kilic submits his own affidavit attesting in relevant part:  “The alleyway and undeveloped [rear parking] area is not open to the public.   Customers of Uptown Pizza do not use the alleyway or undeveloped [rear parking] area.   Almost all of the business of Uptown Pizza is take out or delivery.   Those customers who enter the premises and arrive by car either park on the street or in a parking lot across the street owned by a church.”

Additionally, Muteber submits portions of Kilic's deposition transcript in which Kilic testifies that Uptown Pizza's rear entrance is merely an emergency exit accessible only through the kitchen, Kilic has never seen any customers park in the rear parking area, there are no signs allowing customer parking in the rear, and the trash is picked up by accessing a different entrance than the one used by the plaintiff.   However, Kilic also testifies in relevant part: ¹²

“Q. Have you driven your motor vehicle down [into the rear parking area]?

A. Yes.”

“Q. Have you seen other motor vehicles drive down that particular area?

A. I'm working inside.   I don't know whether there's a car passing by that or not.”

“Q. My question is:  Have you ever seen motor vehicles drive down that location other than you doing it?

A. Yes, I saw.”

“Q. If customers want to come to your restaurant and sit at one of the booths and eat and there's no parking in front of the restaurant, are they permitted to park behind the restaurant?

A. They are parked across the street in front of the church.”

“Q. If a customer sees that there are no parking spaces in front of the restaurant and wants to pull in and park behind the restaurant, are they allowed to do that?

A. There is no sign saying that you can park in the rear of the building.”

“Q. If a customer wants to park behind the building, can he?”

“Q. If a customer wants to come in your restaurant and eat and wants to park behind the restaurant, do you as the restaurant owner, allow him to do so?

A. I don't want to answer.”

“Q. As we sit here today, if I want to go to the restaurant and I can't find any parking spaces on the street and I decided to park behind the restaurant, is that okay as far as you're concerned as the restaurant owner?

A. How come a customer comes and decides with us before parking?   I work inside.   I don't know.”

“Q. Have you ever stopped any restaurant patrons from parking behind the building?

A. I didn't see any customers parking behind the building.”

“Q. Have you ever stopped any customer of the restaurant from parking behind the restaurant?

A. No.”

“Q. Are there any signs behind the restaurant limiting patrons and telling them that they cannot park behind the restaurant?

A. There's no sign, parking sign there.   There is also no sign you can park here.”

Muteber argues that the plaintiff cannot claim that this testimony shows that the rear parking area is open to the public because Kilic's testimony is not as clear as the plaintiff asserts.   Muteber is correct that Kilic's testimony does not put the issue to rest.   The evidence submitted by the defendants does not show quite clearly what the truth is or exclude any real doubt as to the existence of a genuine issue concerning whether the rear parking area is open to the public.   Therefore, the defendants have not carried their burden as the moving party.   Accordingly, the defendants' motions for summary judgment are denied.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. Kilic is the owner of the property located at 300 East Main Street in Meriden, Connecticut.   Muteber is a limited liability company formed by Kilic and of which Kilic is a member.   Muteber is the owner of Uptown Pizza and a lessee of the building located at 300 East Main Street..  FN1. Kilic is the owner of the property located at 300 East Main Street in Meriden, Connecticut.   Muteber is a limited liability company formed by Kilic and of which Kilic is a member.   Muteber is the owner of Uptown Pizza and a lessee of the building located at 300 East Main Street.

FN2. The investigation, however, was unrelated to Uptown Pizza.   The plaintiff was responding to a call about a stolen vehicle in the vicinity and was asked, by dispatch, to check behind Uptown Pizza..  FN2. The investigation, however, was unrelated to Uptown Pizza.   The plaintiff was responding to a call about a stolen vehicle in the vicinity and was asked, by dispatch, to check behind Uptown Pizza.

FN3. Balletta is the underwriter at Zurich North America, the insurer of Muteber.   His affidavit is made on personal knowledge by a person competent to testify and serves to authenticate the attached copy of the insurance policy.  “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..  FN3. Balletta is the underwriter at Zurich North America, the insurer of Muteber.   His affidavit is made on personal knowledge by a person competent to testify and serves to authenticate the attached copy of the insurance policy.  “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.

FN4. “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”   Conn.Code Evid. § 8-4(a)..  FN4. “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”   Conn.Code Evid. § 8-4(a).

FN5. Muteber's evidence includes an affidavit from Kilic and an insurance policy held by Muteber that covers only the inside of the building where Uptown Pizza is located, not the rest of the building, the structure of the building or the property outside the building..  FN5. Muteber's evidence includes an affidavit from Kilic and an insurance policy held by Muteber that covers only the inside of the building where Uptown Pizza is located, not the rest of the building, the structure of the building or the property outside the building.

FN6. Muteber argues, in the alternative, that the plaintiff was entitled only to the duty owed a trespasser and, as such, his claim is barred on that basis.   Muteber contends that the plaintiff was not called to the premises but responded to the wrong address.   Therefore, the plaintiff was not acting in his official capacity when he entered the lot behind Uptown Pizza and, as such, neither the firefighter's rule nor any exception to the firefighter's rule applies.   The court finds that the plaintiff was dispatched to the rear parking area behind Uptown Pizza and was acting in his official capacity as a police officer when he entered it.   The court declines to further address Muteber's argument..  FN6. Muteber argues, in the alternative, that the plaintiff was entitled only to the duty owed a trespasser and, as such, his claim is barred on that basis.   Muteber contends that the plaintiff was not called to the premises but responded to the wrong address.   Therefore, the plaintiff was not acting in his official capacity when he entered the lot behind Uptown Pizza and, as such, neither the firefighter's rule nor any exception to the firefighter's rule applies.   The court finds that the plaintiff was dispatched to the rear parking area behind Uptown Pizza and was acting in his official capacity as a police officer when he entered it.   The court declines to further address Muteber's argument.

FN7. The plaintiff does not dispute that he was acting in his official capacity as a police officer when he slipped and fell in the rear parking area behind Uptown Pizza..  FN7. The plaintiff does not dispute that he was acting in his official capacity as a police officer when he slipped and fell in the rear parking area behind Uptown Pizza.

FN8. An example of public function is a statutory duty to keep a public sidewalk in good repair for the benefit of all members of the public.   Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 336, n.3..  FN8. An example of public function is a statutory duty to keep a public sidewalk in good repair for the benefit of all members of the public.   Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 336, n.3.

FN9. “The Restatement (Second) of Torts § 345(2), illustration five, offers as an example of premises open to the public a department store during business hours.”   Id., n.4..  FN9. “The Restatement (Second) of Torts § 345(2), illustration five, offers as an example of premises open to the public a department store during business hours.”   Id., n.4.

FN10. Segarra involved an on-duty police officer who sustained injuries after falling in a parking lot owned or controlled by several defendants..  FN10. Segarra involved an on-duty police officer who sustained injuries after falling in a parking lot owned or controlled by several defendants.

FN11. The plaintiff in Segarra provided evidence that the parking lot was open to patrons of a nightclub and restaurants in the area, but admitted “that the parking lot ․ was not operated by parking attendants or other personnel at the time of the incident and that the businesses located on the property [where the plaintiff was injured] ․ were not in operation and were not open to the public.”  (Internal quotation marks omitted.)   Segarra v. Electrical Wholesalers, Inc., supra, Superior Court, Docket No. CV 05 5001341..  FN11. The plaintiff in Segarra provided evidence that the parking lot was open to patrons of a nightclub and restaurants in the area, but admitted “that the parking lot ․ was not operated by parking attendants or other personnel at the time of the incident and that the businesses located on the property [where the plaintiff was injured] ․ were not in operation and were not open to the public.”  (Internal quotation marks omitted.)   Segarra v. Electrical Wholesalers, Inc., supra, Superior Court, Docket No. CV 05 5001341.

FN12. Counsel for Kilic made several objections to form during this portion of questioning because the plaintiff's counsel failed to ask preliminary questions to establish that Kilic has encountered these situations.   Kilic was permitted to answer.   These objections have been omitted..  FN12. Counsel for Kilic made several objections to form during this portion of questioning because the plaintiff's counsel failed to ask preliminary questions to establish that Kilic has encountered these situations.   Kilic was permitted to answer.   These objections have been omitted.

Burke, Richard E., J.