John Kowalczyk v. LLC (2011)

MEMORANDUM OF DECISION

John Kowalczyk was employed by Gaylord Hospital (Gaylord) on July 28, 2006, when he was injured while operating a freight elevator in a facility owned by the defendant, Matthews Ventures, LLC (Matthews).   Gaylord leased space in that facility, a multi-unit office complex, and Mr. Kowalczyk was on the premises to assist in moving computers and related equipment for Gaylord, by way of the freight elevator in which he was injured.   Mr. Kowalczyk's injury occurred when he pulled down on a string to shut the elevator doors, and his other hand was caught between the doors.   Since Mr. Kowalczyk had never used this elevator before, he was unaware that the doors closed from the top and bottom, meeting in the middle, rather than from the top down.   At his deposition Mr. Kowalczyk testified that he was familiar with how residential garage doors closed, i.e., from the top to the bottom, based on retrieving his motorcycle from his mother's garage many times, and he assumed that the freight elevator operated the same way.

The operative complaint, which is the second amended complaint, dated May 19, 2011, alleges that Matthews was negligent in permitting Mr. Kowalczyk to use the elevator without providing him any training or instruction in its use and in failing to take reasonable steps to prevent tenants and other untrained individuals, like Mr. Kowalczyk, from using the freight elevator.   Matthews has moved for summary judgment, claiming that, as a matter of law, it breached no duty it owed to Mr. Kowalczyk while he was on the premises.¹

The parties agree that, as an employee of a tenant, lawfully on the premises at his employer's request, Mr. Kowalczyk was a business invitee of Matthews.   “A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.”  (Internal quotation marks omitted.)   Considine v. Waterbury, 279 Conn. 830, 859 (2006).   Thus, there is only a duty owed by Matthews to “train” an invitee in the use of its elevator in the sense that there is a duty to warn such invitee, like Mr. Kowalczyk, of certain dangers associated with its use.²  This duty is not without limits.   “Warning an invitee against dangers which are either known to him or are so obvious to him that he may be expected to discover them is unnecessary.”   (Internal quotation marks omitted.)  Kurti v. Becker, 54 Conn.App. 335, 345, cert. denied, 251 Conn. 909 (1999).   Whether an invitee should be expected to discover a dangerous condition is an issue for the trier of fact where reasonable minds could disagree.  Fleming v. Garnett, 231 Conn. 77, 84 (1994).

A reasonable jury in this case would be free to credit Mr. Kowalczyk's testimony that he had never used this elevator before and was unaware that the doors closed in the middle and not at the bottom, i.e., differently than his mother's garage door.   Indeed, Matthews does not challenge this deposition testimony.   The jury would likewise be free to conclude that this method of closure posed a danger to the hands of someone, like Mr. Kowalczyk, who was unfamiliar with the door's operation.   Finally, the jury would be free to conclude that this danger was not so obvious that Mr. Kowalczyk should have been expected to discover it.   The jury might justifiably conclude that it would be counterintuitive for an inexperienced and unwarned operator to expect that by pulling down on the string that closed the door he would cause a portion of the door to come up from the floor and catch his free hand between the doors.   Thus, a reasonable jury could conclude that Matthews had a duty to warn Mr. Kowalczyk of the manner in which the doors operated and the danger it posed to his hands and arms.   See Fleming v. Garnett, supra, 231 Conn. 84–85.³

Of course, the jury might conclude otherwise, or it might conclude that Mr. Kowalczyk's own negligence caused his injury, as claimed in Matthews' special defense.   These are all quintessential jury questions, however, not ones to be answered by the court.

Viewing the evidence submitted by the parties in the light most favorable to Mr. Kowalczyk, the court concludes that Matthews has failed to carry its “burden of showing the absence of any genuine issue of material facts which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law.”  Barrett v. Montesano, 269 Conn. 787, 791–92 (2004).

Accordingly, the motion for summary judgment is DENIED.

BY THE COURT

Joseph M. Shortall

Judge Trial Referee

FOOTNOTES

FN1. Matthews' motion makes other arguments directed at earlier versions of the complaint which made broader claims of negligence than the operative complaint.   Those arguments need not be considered in ruling on the motion as it attacks the operative complaint..  FN1. Matthews' motion makes other arguments directed at earlier versions of the complaint which made broader claims of negligence than the operative complaint.   Those arguments need not be considered in ruling on the motion as it attacks the operative complaint.

FN2. Although the operative complaint does not allege a violation of the “duty to warn” in so many words, the court finds that its allegation of a failure to train or instruct Mr. Kowalczyk in the operation of the elevator amounts to the same thing..  FN2. Although the operative complaint does not allege a violation of the “duty to warn” in so many words, the court finds that its allegation of a failure to train or instruct Mr. Kowalczyk in the operation of the elevator amounts to the same thing.

FN3. At oral argument Matthews contended that expert testimony would be required to establish that the freight elevator was a danger to an unwarned operator and what precautions Matthews would be required to take to prevent injury.   Whether expert testimony would be required may become an issue for the trial judge to resolve, but it seems like common sense, well within the jury's purview without expert testimony, that an elevator that closed in the manner of the freight elevator here would pose a danger to an inexperienced and unwarned operator and that injury could be prevented by the simple expedient of posting a sign advising the operator that the doors closed in the middle and to keep arms and hands clear of the closing doors..  FN3. At oral argument Matthews contended that expert testimony would be required to establish that the freight elevator was a danger to an unwarned operator and what precautions Matthews would be required to take to prevent injury.   Whether expert testimony would be required may become an issue for the trial judge to resolve, but it seems like common sense, well within the jury's purview without expert testimony, that an elevator that closed in the manner of the freight elevator here would pose a danger to an inexperienced and unwarned operator and that injury could be prevented by the simple expedient of posting a sign advising the operator that the doors closed in the middle and to keep arms and hands clear of the closing doors.

Shortall, Joseph M., J.T.R.