Heath Pelletier v. OIC (2011)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT, Nos. 117 and 122

FACTS

On November 30, 2009, the plaintiff, Heath Pelletier, filed a two-count complaint sounding in negligence against the defendants, Opportunities Industrialization Center of New London County, Inc. (OIC) and ASM Services, LLC (ASM), arising out of a slip and fall accident on December 18, 2008, allegedly caused by black ice in the parking lot that was in the possession and control of OIC. ASM was the contractor retained by OIC to provide snow and ice removal, as well as sanding and salting services, to the parking lot where the plaintiff's injuries allegedly occurred.

On February 3, 2011, the defendant OIC filed a motion for summary judgment on the ground that it had no actual or constructive notice of the defect or dangerous condition alleged by the plaintiff and therefore could not have breached any duty of care.   In support of its motion, OIC filed a memorandum of law, an affidavit of OIC's Executive Director and a transcript of the plaintiff's deposition.   On March 29, 2011, the defendant ASM filed a motion for summary judgment on the same ground as OIC's motion.   ASM attached a memorandum of law in support of its motion, as well as an affidavit of ASM's owner and a transcript of the plaintiff's deposition.   The plaintiff filed an objection and memorandum of law in support of her objection to OIC's motion on March 30, 2011 and a nearly identical objection and memorandum with respect to ASM's motion on May 18, 2011.   OIC filed a reply memorandum on April 4, 2011;  ASM filed its reply memorandum on May 25, 2011.   OIC's motion for summary judgment was heard at short calendar on April 18, 2011, while ASM's motion was heard on May 31, 2011.   In the interest of judicial economy, because both motions are based on the same ground, and the plaintiff alleges the same facts and theory of liability against both defendants, the court will consider both motions together.

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).  “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.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

In the present case, both defendants argue that they are entitled to judgment as a matter of law because the plaintiff cannot prove that they had notice, constructive or otherwise, of the specific defect alleged, namely the icy condition of the parking lot.   The defendants rely on affidavits from their respective owners who state that they had not seen any black ice in the parking lot and never received any reports of slippery or unsafe conditions at the subject premises on the date in question.   Further, they point to the plaintiff's own deposition testimony where the plaintiff admitted to never having seen black ice in the parking lot before and did not know how long it was present.

In response, the plaintiff contends that a genuine issue of material fact exists with respect to whether the defendants had constructive notice of the icy condition of the parking lot.   In support of her argument, the plaintiff relies on her own observations, her deposition, as well as an affidavit from an expert witness, a meteorologist who submitted an affidavit discussing the weather patterns and possible formation of ice on the date of the plaintiff's alleged fall.

“It is well established that, in the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it ․ The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it ․ What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case.”  (Citations omitted;  internal quotation marks omitted.)  Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163–64, 914 A.2d 529 (2007).  “To a considerable degree each case must be decided on its own circumstances.   Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant.”  (Internal quotation marks omitted.)  Kelly v. Stop and Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).

This court recently denied a motion for summary judgment in a factually similar case, Koozmitch v. South Kendall Properties, Inc., Superior Court, judicial district of New London, Docket No. 07 5007155 (February 26, 2010, Martin, J.).   The defendants moved for summary judgment on the ground that the plaintiff could not prove that they had constructive notice of the icy conditions of the defendants' parking lot.   Included in this court's analysis was a discussion of the Supreme Court case, Riccio v. Harbour Village Condominium Assn., Inc., supra, 281 Conn. 164, which stated:  “[u]nder our current law, [m]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant's duty.”

The Supreme Court continued:  “It is a matter of common knowledge that whether snow melts or refreezes is entirely dependent on the ambient air temperature.   In the present case the plaintiff failed to produce any evidence regarding air temperature in Branford on the days and hours preceding her fall.   The plaintiff therefore failed to produce any evidential basis from which a fact finder could determine that the black ice that caused the plaintiff's fall in fact had been caused by the melting and refreezing of snow and not by another intervening factor, such as, for example, an accidental spill of fluid on the ground near the garbage bin where the plaintiff fell.”  Id., 165.

This court ultimately concluded that the plaintiff in Koozmitch had presented adequate evidence in the form of a meteorologist serving as an expert witness and the plaintiff's own testimony to create issues of fact as to how the condition was created and whether the alleged condition existed for a length of time reasonable for the defendants to discover and remedy it.

In the present case, the evidence submitted by both parties reveals that the plaintiff, during her deposition, described the ice upon which she fell as “black ice” and agreed with the observation that is was “sort of crystal or a frozen thin sheen on top of the pavement surface.”   Her observations are bolstered by the plaintiff's meteorologist expert, who attests to the following in his sworn affidavit:  On December 18, 2008 at approximately 8:45 a.m., the time of the plaintiff's alleged fall, there was no precipitation in the New London area.   The last precipitation in the area occurred the previous day, where .07 inches fell.   On the day of the alleged injury, the temperature was 31 degrees Fahrenheit with no wind.   From midnight up until the time of the plaintiff's alleged fall, the temperature remained at or below freezing, and the humidity was very high with very little wind.   Based on this data, the meteorologist concluded that condensation occurred in the New London area in the hours before the plaintiff's alleged fall, and the result of this weather pattern could certainly result in the formation of black ice on ground surfaces.   The expert also concludes that any such frozen accumulations on ground surfaces would have commenced around midnight on December 18, 2008 and would have remained present at around 8:45 a.m., the time the plaintiff was allegedly injured.   The evidence submitted by the plaintiff distinguishes this case from Riccio v. Harbour Village Condominium Assn. Inc., supra, 281 Conn. 165, where the Supreme Court held that the plaintiff failed to produce evidence regarding air temperature to allow a trier of fact to reasonably conclude that icy conditions caused her fall.

Having reviewed the arguments and evidence submitted by both parties, the court finds that a genuine issue of material fact exists with respect to whether the defendants had constructive notice of the icy condition of the parking lot.   Constructive notice “turns on whether the condition existed for a length of time sufficient for the defendant's employees, in the exercise of due care, to discover the defect in time to have remedied it.”  Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).   The defendants argue that the evidence from the meteorologist is conjecture and does not relate to the specific black ice on OIC's parking lot.   Nevertheless, the meteorologist's affidavit, combined with the plaintiff's own deposition testimony, creates an issue of fact as to how long the allegedly dangerous condition existed.  “°'Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  Morascini v. Commissioner of Public Safety, 236 Conn. 781, 808, 675 A.2d 1340 (1996).   The defendants' repeated arguments that the plaintiff had parked in the same spot for weeks without noticing any ice is irrelevant, as the evidence indicates that a trier of fact could reasonably conclude that the icy condition did not commence until the night before the plaintiff arrived at the OIC parking lot.   Accordingly, it is a trier of fact's role and not this court's, while deciding a summary judgment motion, to decide whether such a condition existed for a “reasonable” amount of time to infer constructive notice on the defendants.   Therefore, summary judgment is inappropriate at this stage in the proceedings.

Finally, ASM's argument made in its reply memorandum that it does not owe a duty to the plaintiff because it does not have an ownership or management interest in the subject premises fails because if a trier of fact were to conclude that the parking lot was in a dangerous and icy condition for a reasonable length of time, then ASM, as the contracted snow and ice remover for the parking lot, had a duty to remedy the condition and would be on notice of the defect.

CONCLUSION

For the foregoing reasons, both OIC and ASM's motions for summary judgment are denied.

Martin, J.

Martin, Robert A., J.