Cecil Buxton et al. v. Grazyna Urbanski et al. (2011)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiff Cecil Buxton has filed this civil action against the defendants Grazyna Urbanski and Rivercrest Estate Association, Inc. Urbanski is the plaintiff's abutting neighbor at the defendant condominium association.   The plaintiff sues for damages from a flood of water that started in Urbanski's basement and leaked into the Buxton home.

In Count I of the complaint the plaintiff makes a claim for money damages for the cost of repairing the water damage.   In Count II of the complaint, the plaintiff makes a claim for money damages for personal injury as a result of a slip and fall on the floor of his unit that he claims was caused by the water damage.

The defendant Urbanski moves for summary judgment on Count II, arguing that as a matter of law she cannot be held liable for the plaintiff's personal injury on the undisputed facts of this case.   On this record, the court cannot grant summary judgment.

THE SUBMISSIONS OF THE PARTIES

The complaint in this case alleges that the water leak from the defendant's unit into that of the plaintiff occurred on May 4, 2008.   The complaint alleges that the plaintiff removed the carpet from his unit, exposing the bare floor.   Then on January 5, 2009, the plaintiff slipped on the exposed floor and suffered personal injury.   He alleges that Urbanski had a duty to replace the rug in his unit or provide a protective surface for him.   Urbanski has denied or pleaded insufficient information as to these allegations;  none of the allegations is admitted.

Urbanski has filed an affidavit that avers that she never had any control over the plaintiff's unit, and that she never had authority to enter his unit to make repairs.   She has also filed portions of deposition transcripts that describe how the plaintiff's personal injury occurred:  that he was walking in his socks, that he got one of his socks wet when he briefly stepped outside, and then he slipped on the floor while wearing the wet sock.

The plaintiff has filed an affidavit that avers that he removed the wet carpet to try to reduce the property damage in his unit and that he had no funds to replace it prior to his fall.

THE STANDARDS FOR SUMMARY JUDGMENT

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.  Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).   The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the party is entitled, under principles of substantive law, to a judgment as a matter of law.  Id.

In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts.  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).

In supporting or opposing summary judgment, Conn. P.B. § 17-45 requires the parties to file affidavits and other documentary evidence sufficient to establish or refute the existence of a disputed issue of fact.   Unadmitted allegations in the pleadings are not considered competent evidence and do not constitute proof of a material fact.  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).   Rather, in moving for or opposing summary judgment, a party must submit documentation that would form the basis for evidence admissible at trial.  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).   See also Conn. P.B. § 17-46.

The issue of whether a defendant owes a duty of care to a plaintiff is an appropriate matter for summary judgment because the question is one of law.   There can be no cause of action for negligence unless there exists a cognizable duty of care.   Whether a duty of care exists is a question of law to be decided by the court.   See Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).

DISCUSSION

Any determination at the summary judgment stage of whether a duty exists must be founded upon facts that are established in the submissions of the parties.   The defendant's argument for granting summary judgment is that there is no proximate causal link between the water leak and the plaintiff's fall some seven months later, especially since the defendant had no way of knowing what the situation was in the plaintiff's unit, that is, what steps the plaintiff had undertaken to account for his own safety in his own home.   This argument may have merit.

However, since unadmitted allegations in the complaint do not constitute competent evidence for purposes of summary judgment, this court has no basis to determine if there is a disputed issue of fact about 1) when the water leak occurred;  2) when the plaintiff's injury occurred;  3) what, if any, notice the plaintiff gave to the defendant about the property damage in his apartment;  4) what, if any, authority he gave to the defendant to enter his unit to inspect and assess the state of the flooring, etc.   While it is tempting to ignore the rules of practice and assume that certain of the allegations in the complaint are true (or assume that since certain facts were not specifically contested at oral argument, those facts are undisputed), this court declines to do so.   On this meager record, the court cannot presume to determine which facts are in dispute and which are not.

The Motion for Summary Judgment is so procedurally deficient that, even if the defendant's legal claims were meritorious, it would likely be error to consider granting summary judgment as these papers now stand.

CONCLUSION

The Motion for Summary Judgment must be, and it is hereby, denied.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.