Kaaren E. Olsen v. Peter Gottlieb (2011)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENTS # 130 and # 132

I

FACTS

On October 22, 2009, the plaintiff, Kaaren Olsen, filed a three-count amended complaint against the defendants, Peter Gottlieb, DeCaro Restaurant Group, Inc. and Decaro, Inc., alleging negligent conduct.¹  According to the plaintiff, on or about June 10, 2007, she and Gottlieb were in attendance at a social gathering open to the public at the Splash Restaurant & Bar (“Splash”) located at the Inn at Longshore in Westport, Connecticut.   The plaintiff alleges that, while on the outside patio, Gottlieb negligently lost control of his person and knocked into the plaintiff;  causing her to fall backwards to the ground, strike her head on the flagstone floor and her friend to fall on top of her.   The complaint further alleges that DeCaro, Inc. and DeCaro Restaurant Group, Inc. (collectively “DeCaro”) owned, operated, and/or managed Splash and that DeCaro placed sand on the floor of Splash, including that portion of the patio floor that DeCaro knew or should have known was used by its patrons as a dance floor.

On February 11, 2010, Gottlieb filed a revised apportionment complaint against DeCaro, denying that he knocked into the plaintiff causing her to fall and denying that he was negligent and/or careless.   Rather, Gottlieb alleges that if the plaintiff's injuries were the result of negligence or carelessness, as set forth in the plaintiff's complaint, that DeCaro is or may be liable for an apportionment share of the damages because DeCaro negligently caused the injuries in whole or in part.

On March 2, 2011, DeCaro filed a motion for summary judgment (# 130) along with a supporting memorandum of law and evidentiary support as to counts two and three of the plaintiff's amended complaint and a motion for summary judgment (# 132) along with a supporting memorandum of law and evidentiary support as to Gottlieb's apportionment complaint.   In both motions, DeCaro argues that it is entitled to summary judgment because there is no genuine issue of material fact that DeCaro was not negligent.   On April 13, 2011, Gottlieb filed a memorandum of law in opposition to DeCaro's motion for summary judgment on the apportionment complaint.   On April 18, 2011, the plaintiff filed an objection to the motion for summary judgment adopting Gottlieb's memorandum of law.   On April 21, 2011, and April 25, 2011, DeCaro filed reply memoranda to the objections of the plaintiff and Gottlieb, respectively.

The matter was assigned to the April 25, 2011 short calendar.

II

DISCUSSIONASummary Judgment Standard

“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

Motion for Summary Judgment as to the Plaintiff's Complaint

In counts two and three of her amended complaint, the plaintiff alleges that DeCaro was negligent in that it created a dangerous and defective condition;  failed to properly maintain the area;  failed to take reasonable measures to remedy or alleviate the defective condition;  failed to make reasonable and proper inspections of the area of the defective condition;  failed to monitor the condition of the premises to detect and remedy unsafe conditions;  failed to post signs or otherwise warn patrons of the defective condition, even though it knew or should have known such condition existed on the property;  and knew or should have known that placing sand on the patio floor, known to be used by its patrons as a dance floor, was likely to create a dangerous and defective condition that would result in injuries to its patrons.

In its motion for summary judgment, DeCaro argues that there is no genuine issue of material fact that it was not negligent and that the presence of sand on the floor did not cause or contribute to the plaintiff's accident.   In support of its argument, DeCaro submits portions of the uncertified deposition transcripts of the plaintiff and Gottlieb which, according to DeCaro, demonstrate that the plaintiff cannot create a causal connection between the sand on the floor, Gottlieb and the accident.

The plaintiff objects arguing that there are genuine issues of material fact regarding whether DeCaro caused the plaintiff's fall and contends that DeCaro did not present any admissible evidence in support of its motion.   The plaintiff does not submit a memorandum of law in support of her objection but rather adopts the memorandum of law submitted by Gottlieb in support of his opposition to DeCaro's motion for summary judgment on the apportionment complaint.   In his memorandum of law, Gottlieb objects to DeCaro's submission of uncertified deposition transcripts.   Gottlieb argues that summary judgment is not proper because DeCaro did not submit any admissible evidence in support of its motion and because there are genuine issues of material fact concerning the cause of the plaintiff's fall.   Gottlieb submits his own affidavit in support of his argument.

DeCaro filed a memorandum of law in reply to the plaintiff's objection noting that the plaintiff, herself, submits no evidence in support of her argument and the issues contained in the motion for summary judgment as to the plaintiff's complaint are different than the issues contained in the summary judgment motion relating to Gottlieb's apportionment complaint.   Furthermore, DeCaro submits with his reply memorandum the deposition transcripts with the certification pages and argues that the court can consider the earlier submission of the deposition transcripts.

1

Deposition Transcripts

“A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”   Practice Book § 17–45.  “[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).  “[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).   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).

In the present case, in support of its motions for summary judgment on the plaintiff's complaint and Gottlieb's apportionment complaint, DeCaro submits the uncertified deposition transcripts of the plaintiff and Gottlieb.   The plaintiff and Gottlieb object to the court's consideration of the uncertified transcripts.   Attached to its reply memorandum, DeCaro resubmits the deposition transcripts with cover and certification pages.   This supplemental submission cures the objection to the deposition transcripts.   See Russo v. DeWolfe Co., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 05 4001918 (October 23, 2006, Stevens, J.).   Accordingly, the court will consider the deposition transcripts of the plaintiff and Gottlieb.

2

Negligence

DeCaro argues that there is no genuine issue of material fact that it was not negligent and that the presence of sand on the floor did not cause or contribute to the plaintiff's accident.   The plaintiff objects arguing that there are genuine issues of material fact regarding whether DeCaro caused the plaintiff's fall.

“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).

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 139–40, 2 A.3d 859 (2010).  “To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries ․ The first component of legal cause is causation in fact.   Causation in fact is the purest legal application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred if it were not for the actor's conduct ․ The second component of legal cause is proximate cause ․ [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries ․ Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] ․ The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ․ This causal connection must be based upon more than conjecture and surmise ․ An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm ․ The finding of actual cause is thus a requisite for any finding of proximate cause.”  (Citation omitted;  internal quotation marks omitted.)  Winn v. Posades, 281 Conn. 50, 56–57, 913 A.2d 407 (2007).

“[L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation ․ Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions ․ The fundamental inquiry of proximate cause is whether that harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct ․ In negligence cases ․ in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the [victim] ․ The determination of the nature of the legal duty owed, if any, must be rooted in the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong ․ [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in producing the [victim's] injury ․ To that end, [t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Citations omitted;  internal quotation marks omitted.)   Finkle v. Carroll, Superior Court, judicial district of Waterbury, Docket No. CV 08 8011369 (September 17, 2010, Ozalis, J.) (50 Conn. L. Rptr. 681).

In the present case, DeCaro argues that summary judgment is proper because the plaintiff cannot create a causal connection between the sand on the floor, Gottlieb and the accident.   DeCaro submits portions of the plaintiff's deposition in which the plaintiff testified that she had previously been to Splash on several occasions, was aware that there was sand on the floor and the weather was sunny and warm.   The plaintiff further testified that she was on the dance floor, dancing with one of her friends when she felt something bump into the back of her legs causing her to fall to the ground.   The plaintiff testified that she did not see what bumped into the back of her legs, was not having trouble with her footing on the dance floor and the dance floor did not cause her to slip or trip, but rather, her fall was caused solely by some contact to the back of her legs.   According to the plaintiff, she did not see and does not know what caused her to fall.

DeCaro also submits Gottlieb's deposition testimony in which Gottlieb testified that he had no facts to support the allegations in his apportionment complaint that DeCaro created a dangerous defect, failed to maintain the area, failed to take reasonable measures to remedy or remediate an allegedly defective condition, or failed to monitor the condition of the premises or to detect or remedy an unsafe condition.   Gottlieb also testified that he did not recall actually slipping on sand or sand being a contributing factor to his fall but that he could not attribute any specific event to falling.   Furthermore, Gottlieb testified that he was never in touch physically with the plaintiff or her friend who fell on top of the plaintiff.

The plaintiff objects and adopts the arguments set forth in Gottlieb's memorandum of law, specifically, that negligence is ill-suit to summary judgment and that DeCaro's submission of select pages from the deposition transcripts does not present the court with the whole story.   The plaintiff submits only Gottlieb's affidavit that was attached to his memorandum of law.   Gottlieb attests that the patio was covered in sand, all parties involved fell simultaneously and he “simply [does] not know what caused the plaintiff to fall.   I only know that I did not knock into her at any time and that no part of my body ever came in contact with the plaintiff.”

In essence, the evidence presented demonstrates that both DeCaro and Gottlieb deny being the legal or proximate cause of the plaintiff's fall and resulting injuries.  “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).   The evidence shows that there is a genuine issue of material fact regarding the exact cause of the plaintiff's fall.   Because “there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  Finkle v. Carroll, supra, 50 Conn. L. Rptr. 681.   Therefore, the motion for summary judgment as to the plaintiff's complaint is denied.

C

Motion for Summary Judgment as to Gottlieb's Apportionment Complaint

In his apportionment complaint, Gottlieb denies that he knocked into the plaintiff causing her to fall and denies that he was negligent and/or careless.   Rather, Gottlieb alleges that the sand placed on the patio created a slippery and/or uneven condition with improper footing, which led to the plaintiff's fall.   Therefore, Gottlieb alleges, that if the plaintiff was injured as her complaint alleges, her injuries were caused in whole or in part by and through the negligent acts or omissions of DeCaro in that DeCaro created the alleged dangerous or defective condition;  failed to properly maintain the area;  failed to take reasonable measures to remedy or alleviate the allegedly defective condition;  failed to monitor the condition of the premises to detect and remedy unsafe conditions;  failed to post signs or otherwise warn of the allegedly defective condition even though it knew or should have known such a condition existed;  and it knew or should have known that placing sand on the patio floor known to be used by its patrons as a dance floor was likely to create a dangerous and defective condition that would result in injuries to its patrons.

DeCaro moves for summary judgment arguing that there is no genuine issue of material fact that Gottlieb cannot prove that DeCaro was negligent because Gottlieb cannot prove that the sand contributed to the plaintiff's fall.   In support of its argument, DeCaro submits the same portions of the deposition testimony of the plaintiff and Gottlieb previously discussed in subpart B(2).

Gottlieb objects arguing that summary judgment is not proper because negligence is ill-suit to summary judgment and DeCaro's submission of select pages from the deposition transcripts does not present the court with the whole story.   In support of his argument, Gottlieb submits his own affidavit in which he attests that the patio was covered in sand, all parties involved fell simultaneously and he “simply [does] not know what caused the plaintiff to fall.   I only know that I did not knock into her at any time and that no part of my body ever came in contact with the plaintiff.”

For the reasons previously stated in subpart B(2), the motion for summary judgment as to Gottlieb's apportionment complaint is denied.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. All counts allege negligence with count one directed at Gottlieb, count two directed at DeCaro, Inc., and count three directed at DeCaro Restaurant Group, Inc..  FN1. All counts allege negligence with count one directed at Gottlieb, count two directed at DeCaro, Inc., and count three directed at DeCaro Restaurant Group, Inc.

Burke, Richard E., J.