Rachel Hickok v. Joseph Dubray et al. (2011)

MEMORANDUM OF DECISION

This is a motion for summary judgment (# 118) which has been filed by the defendants, Joseph Dubray and Janette Dubray d/b/a Kent Health Care Center (“Dubray”).   The plaintiff, Rachel Hickock, was injured when she fell while walking in her employer's parking lot.   Dubray provided snow removal services to the plaintiff's employer, The Kent, d/b/a Kent Health Care Center (“Kent”).   Kent has intervened in the suit as a plaintiff in order to recover workers' compensation benefits paid to the plaintiff.   Dubray's summary judgment motion is support by a memorandum of law accompanied by a certified copy of the plaintiff's deposition transcript.   The plaintiff and Kent have submitted a memorandum in opposition to the motion which is accompanied by a certified copy of Mr. Dubray's deposition transcript.   Oral argument took place at the short calender on February 14, 2011.

The documentary evidence submitted by the parties establishes that on February 29, 2008 the plaintiff parked her car in her employer's lower parking lot when she arrived for work that day to work a double shift.   It was not snowing when she arrived but began to snow during her first shift.   In accordance with standard instructions from the Kent management at the end of her first shift at about 11:00 p.m. the plaintiff walked out to the parking lot to move her car so the lower lot could be cleaned.   Dubray had equipment on the premises and was in the process of plowing snow from the parking lots and walkways.   While walking on one of the walkways the plaintiff slipped and fell.

At the time of the plaintiff's fall, Dubray had an agreement with Kent to sand, salt and shovel the walkways at the Kent property between 5:00 p.m. and 7:30 a.m. when the Kent maintenance personnel were not there.   Dubray knew that employees who worked double shifts would come out and move their cars when it was snowing.

The basis of the motion for summary judgment is the argument that Dubray did not owe the plaintiff a duty of care because there was a snow storm in progress at the time of the fall.

“[I]n the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.   To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical.”  Kraus v. Newton, 211 Conn. 191, 197–98 (1989).

The evidence from both parties demonstrates that there was a snow storm in progress at the time of the plaintiff's fall.   The plaintiff argues that she should not be subject to the general rule of Kraus because the facts of the case cause the case to fall within the “unusual circumstances” exception to the general rule.   Specifically, the plaintiff argues that it was an unusual circumstance that the plaintiff was required by her employer to move her car at the end of her first shift, and that Dubray was aware that employees would be coming out to move their cars in the midst of snow storms.

The parties have not cited the court to any appellate authority which is especially helpful in understanding the meaning of the phrase “unusual circumstances.”   In Sinert v. Olympia and York Development Co., 38 Conn.App. 844 (1995) the Appellate Court found that the fact that the defendants were commercial property owners did not present an “unusual circumstance.”  “Unusual circumstances, therefore, do not include those factors that define the status of the defendant.   Kraus makes it clear that, absent unusual circumstances, the only factors to be considered are whether the storm was ongoing at the time, of the accident and the plaintiffs status as an invitee.”   There is a Superior Court case decided by Judge Fazzini which does provide guidance to the court.   In Lubus v. Bridgewater Common, Superior Court, judicial district of Litchfield, Docket No. 99–0077750 (December 7, 1999) [26 Conn. L. Rptr. 87], the plaintiff fell on ice on a walkway of a condominium complex.   The plaintiff sued the condominium association which was in control of the walkway and the landscaping company which had a contract to remove snow and ice.   Both defendants moved for summary and presented evidence that there was an ice storm ongoing at the time of the plaintiff's fall.   Judge Frazzini denied summary judgment as to the condominium association because he felt that there was an issue of fact as to the existence of “unusual circumstances” which might arise from the unique responsibilities of a landowner.   However, Judge Frazzini granted summary judgment as to the snow removal company because these unique responsibilities do not apply to someone alleged to be liable solely by virtue of a responsibility to remove snow and ice.   As to the snow removal company, Judge Frazzini found that there were no “unusual circumstances” which would remove the case from the general rule of Kraus.

The facts before the court contain a twist not present in Lubus.   Here, Dubray knew that double-shift employees would be required by Kent to walk out to their cars during a snow storm, to move them to another lot, and then to walk back into the building.   Dubray knew or should have known that these employees would be subject to the risks of walking in a parking lot in the midst of a snowstorm.   This creates a factual issue about whether these facts present an “unusual circumstance” which would create a duty on the part of Dubray.   Only the jury can decide this factual issue.   For this reason, the motion for summary judgment must be denied.

BY THE COURT

John W. Pickard

Pickard, John W., J.