Michele Hurlburt v. City of East Haven et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 121

BACKGROUND

The plaintiff alleges that on or about September 7, 2007 she fell due to a metal water pipe and cap protruding from the ground on the premises known as 19 Laura Circle, East Haven, CT. She was injured as a result of the fall.

The plaintiff has filed suit against the City of East Haven, South Central Connecticut Regional Water Authority and the owners of the property Joseph Eliseo and Cheryl Hurburt.

The plaintiff asserts that the Water Authority controlled and possessed the metal water pipe and cap.   The water company argues that they do not own or maintain this curb box and have no responsibility to maintain or repair it.   The Water Company argues they have no legal duty to the plaintiff.   Motion for Summary Judgment was filed by the Water Authority on January 21, 2011.   Oral argument was March 28, 2011.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “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, 554, 985 A.2d 1042 (2010).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobil Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).  “The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557, 979 A.2d 1055, cert. denied, 294 Conn. 913 A.2d 274 (2009).  “In ruling on a motion for summary judgment, the court's function is not to decide 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).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ The courts hold the movant to a strict standard ․ 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).  “An important exception exists ․ to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.”   (Internal quotation marks omitted.)  Baldwin v. Curtis, 105 Conn.App. 844, 850–51, 939 A.2d 1249 (2008).

The Water Authority argues they do not own, control or possess the curb box, and therefore do not owe a legal duty to the plaintiff regarding her alleged injuries.   The affidavit of David Johnson, service manager for the Water Authority, confirms that the property owner owns the curb box and the customer is responsible for the maintenance and repair of that curb box.

The plaintiff argues the curb box is marked “water” and therefore a jury could interpret that it is responsible for the water pipe.   The plaintiff did not provide any affidavits or evidence in support of its opposition to this motion.

“In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail.   These elements are:  duty;  breach of that duty;  causation;  and actual injury.”  LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).  “To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty ․ The existence of a duty is a question of law ․ 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.)  Vitale v. Kowal, 101 Conn.App. 691, 698, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).

Even viewing the evidence in the light most favorable to the plaintiff, the defendant satisfies its burden of proving that no genuine issue of material fact exists as to whether a legal duty is owed to the plaintiff by the defendant Water Authority.

For the foregoing reasons, the court grants the defendant's motion for summary judgment.

Brian T. Fischer, J.

Fischer, Brian T., J.