Michael Proto v. Most Holy Trinity et al. (2011)

CORRECTED MEMORANDUM OF DECISION (Correction to Memorandum of Decision dated May 24, 2011) Correction made was re clarification in the last sentence of the decision

The plaintiff, Michael Proto, has filed suit against the defendants, Donald Valente and Most Holy Trinity Roman Catholic Church and the Archdiocese of Hartford, Connecticut (collectively, the Church), to recover damages from an alleged slip and fall incident.   The plaintiff alleges that, on June 7, 2007, he was leaving a Church carnival and was walking back to his vehicle, which was parked in a parking lot adjacent to the Church, when he “tripped and was caused to fall and/or slip on and/or over a cement speed bump that was in the parking lot,” thereby sustaining personal injuries.   The plaintiff further alleges that the Church owned, controlled, possessed, maintained, leased, subleased and/or had a right of way and/or easement over the parking lot area, which “was of a dangerous condition.”   Moreover, the plaintiff alleges that the dangerous condition had existed for a period of time before the fall and that the Church knew or should have known that this condition existed without sufficient illumination or warnings.   In this regard, the plaintiff alleges that the Church's negligence was the proximate cause of his injuries.

The Church has moved for summary judgment.   The Church argues that it did not own, possess or control the property where the plaintiff claims to have been injured and, thus, cannot be held liable for his injuries.

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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “[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 ․ Once the moving party has met its burden ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.”   (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “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).   Moreover, the “court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, supra, 284 Conn. 791.

“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 ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․” (Citation omitted;  internal quotation marks omitted.)   LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).  “In order to assess the duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows ․ Liability for injuries caused by defective premises ․ does not depend on who holds legal title, but rather on who has possession and control of the property.”  (Citations omitted.)  Id.

In the present case, it is undisputed that the Church is located at 84 North Colony Street, Wallingford (Church property), and the property on which the plaintiff alleges that he was injured is located at 11 Hall Avenue, Wallingford (Hall Avenue property).   It is also undisputed that the Hall Avenue property is owned by Valente, who purchased it from the Church in 1984, but that the Church retained a right of way on the Hall Avenue property to exit the Church property onto Hall Avenue.

The Church argues that the plaintiff cannot point to any evidence that the Church was in possession and control of the Hall Avenue property at issue.   The Church notes, correctly, that an easement does not create a possessory interest in land.   See, e.g., Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000).

The plaintiff argues, however, that there is evidence that a Church employee painted the speed bump with the color white to help people see it.   Nevertheless, this occurred after the alleged fall and, more importantly, the employee asked Valente's permission prior to painting the speed bump.   Certainly, this does not show the Church's possession and control of the Hall Avenue property prior to the alleged fall.   The plaintiff also argues that there is evidence that people attending the Church would exit over the Hall Avenue property and, at the time of previous carnivals, people would park on or near Hall Avenue and enter and exit the carnival over the Hall Avenue property.¹  The plaintiff provides no authority that such behavior is evidence that the Church maintained possession and control over the Hall Avenue property.

The court finds that there is no issue of material fact that the Church was not in possession and control of the Hall Avenue property and, therefore, did not owe the plaintiff a duty of care.   See Sherman v. Konover Properties, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005607 (December 23, 2008, Alvord, J.).   Accordingly, the motion for summary judgment is granted in favor of Most Holy Trinity Roman Catholic Church and the Archdiocese of Hartford, Connecticut.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. There was also testimony that the Church did not post any signs directing people where to park, nor did anyone connected with the Church tell people where to park..  FN1. There was also testimony that the Church did not post any signs directing people where to park, nor did anyone connected with the Church tell people where to park.

Fischer, Jack W., J.