Lamar Harris v. Marta Johnson (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 101)

FACTS

On May 17, 2010, the plaintiff, Lamar Harris, filed a five-count complaint against the defendants, David Johnson, Marta Johnson and Thuwesdia Robinson.¹  Counts one and two allege the following facts against David and Marta Johnson.   On April 19, 2008, the plaintiff was an invited guest at the home of the Johnsons in Uncasville, Connecticut, where a large crowd of guests gathered.   One of the guests assaulted the plaintiff by stabbing him with a knife, as well as kicking and punching him in the back, head and face.   The plaintiff alleges that the defendants, as homeowners, were negligent in that they breached their duty to maintain the premises in a safe manner for their guests and to take all steps reasonably necessary to ensure their guests' safety.

The defendants filed a motion for summary judgment and accompanying memorandum of law on July 8, 2010.   The plaintiff filed an objection to the defendants' motion for summary judgment and a memorandum of law in support of his objection on January 19, 2011.   The defendants filed a reply memorandum on January 21, 2011.

DISCUSSION

“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).  “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.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “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.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

In the present case, the defendants argue that they owed no duty to the plaintiff because the plaintiff's injuries were not foreseeable.   Specifically, the defendants assert that they were out of the country at the time of the plaintiff's alleged injury, had no knowledge of the events leading to the injury, did not grant permission for any party at their home and did not invite either the plaintiff or his alleged assailant to their home.   The defendants have introduced affidavits from themselves as well as their adult son, the alleged host of the party.

In response, the plaintiff contends that there are genuine issues of material fact as to whether the harm suffered by the plaintiff was foreseeable to the defendants, thus giving rise to a duty owed to the plaintiff.   The plaintiff cites to and quotes at length deposition testimony from the defendants' adult son in his memorandum of law in opposition to the motion for summary judgment.²

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Because duty is an essential element in a negligence action, the plaintiff cannot have an action in negligence unless he shows that the defendant owed a duty to the plaintiff.”  (Citations omitted;  internal quotation marks omitted.)  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004).  “[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 test for determining legal duty is a two-prong analysis that includes:  (1) a determination of foreseeability;  and (2) public policy analysis.”  Monk v. Temple Garage Associates, LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005).  “Our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant ․ By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?”  (Internal quotation marks omitted.)   LePage v. Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002).

From a public policy standpoint, with respect to cases alleging the negligence of a parent when his or her child throws an unsupervised party with minors consuming alcohol, this court recently held that “[i]n order for a plaintiff in a negligent supervision action to argue that there is a disputed factual issue about what a defendant parent ‘should have known,’ a court must have a factual basis based upon what has been presented by the parties in order to conclude that a defendant parent could have been able to anticipate the incident that is the subject of the action.   See, e.g., Kitchens v. Kramer, Superior Court, judicial district of New Haven, Docket No. CV 04 0287229 (January 26, 2006, Shlugher, J.) (factual dispute over whether plaintiff's injury from fight at party hosted by minor daughter was foreseeable existed where defendant parents' agent had witnessed another fight during party earlier that evening);  Burke v. Fitzgerald, Superior Court, judicial district of Fairfield, Docket No. CV 95 0322083 (September 22, 1997, Melville, J.) (factual dispute over what defendant parents should have known existed where defendant minor stated that they ‘were aware that she drank alcohol’ due to past ‘trouble’).”  (Internal quotation marks omitted.)   Stein v. Lee, Superior Court, judicial district of New London, Docket No. CV 08 5009444 (January 25, 2011, Martin, J.) [51 Conn. L. Rptr. 302].

Furthermore, “[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 Association, Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).  “[T]he possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands.   He must act as a reasonable man to avoid harm ․ even from intentional attacks on the part of such third persons.”  (Internal quotation marks omitted.)  Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973).

The evidence presented in this case reveals that the defendants' son had engaged in underage drinking in the past and that his parents likely knew about it.   Further, the defendants' son has had a history of disciplinary problems at school that would tend to show his irresponsibility, bringing into doubt his parents' decision to leave him alone in their home.   The court's role in ruling on a motion for summary judgment is not to decide issues of fact but rather simply to decide whether such issues exist.   See Maltas v. Maltas, supra, 298 Conn. 365.   The evidence supplied by the plaintiff gives rise to a genuine issue of material fact as to whether the defendants knew or should have known that their son would host a party with underage drinking, rendering the potential for harm to the party's guests a foreseeable occurrence.   Thus, a summary disposition of this case would be inappropriate.

CONCLUSION

Based on the foregoing, the defendants David Johnson and Marta Johnson's motion for summary judgment with respect to counts one and two of the complaint is hereby denied.

Martin, J.

FOOTNOTES

FN1. Thuwesdia Robinson has not filed an appearance in this action, and David and Marta Johnson are the only defendants moving for summary judgment.   Thus, for the purposes of this memorandum, “the defendants” will be used to refer to David and Marta Johnson..  FN1. Thuwesdia Robinson has not filed an appearance in this action, and David and Marta Johnson are the only defendants moving for summary judgment.   Thus, for the purposes of this memorandum, “the defendants” will be used to refer to David and Marta Johnson.

FN2. The plaintiff's evidence used to oppose this motion for summary judgment has not been properly authenticated.  “[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 ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn.App. 68, 73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).   Nevertheless, the court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Because the defendants had ample opportunity to object either in their reply memorandum or at oral argument but failed to do so, this court will exercise its discretion and consider the plaintiff's evidence..  FN2. The plaintiff's evidence used to oppose this motion for summary judgment has not been properly authenticated.  “[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 ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn.App. 68, 73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).   Nevertheless, the court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Because the defendants had ample opportunity to object either in their reply memorandum or at oral argument but failed to do so, this court will exercise its discretion and consider the plaintiff's evidence.

Martin, Robert A., J.