Maria Colon v. City of New Haven et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT CITY OF NEW HAVEN'S MOTION FOR SUMMARY JUDGMENT

BACKGROUND:

This action concerns a slip and fall which occurred on a driveway apron in front of defendant Rocco's Pastry Shop in New Haven.   The plaintiff alleges she sustained injuries and damages as a result of the fall and has brought her action against Rocco's Pastry Shop and the City of New Haven (“New Haven”), asserting that each was in possession and control of the defective apron.   The defendant New Haven has filed a motion for summary judgment, together with a memorandum of law and supporting documentation, claiming that it did not possess or control the area where the plaintiff fell.   The plaintiff and codefendant have filed objections to the motions.

After a brief hearing on September 19, 2011, the parties were given time to supplement their filings and the matter was set down for further argument on September 26, 2011.   On that date, and despite specifically requesting the date for oral argument, the codefendant, Rocco's Pastry Shop did not appear and therefore, its objection was not considered.   The motion of New Haven and the objection by the plaintiff were argued by counsel.

LEGAL STANDARD:

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.”  Practice Book § 17–49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact that will make a difference in the result of the case ․” (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2 777 (2006).

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   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 issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Internal quotation marks omitted.)   Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “[T]he ‘genuine issue’ aspect of summary judgment procedure 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.”  (Internal quotation marks omitted.)  Id., 378–79.  “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.)  Id.

ANALYSIS

In this matter, the litigants agree that the plaintiff fell on a portion of the driveway apron which rises from the street to form curbing.   The dispute here is whether New Haven had possession and control of that area.  “Liability for an injury due to defective premises does not depend on title, but on possession and control.”  Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966).

New Haven has provided an affidavit from its director of engineering, Richard Miller, stating that area where the plaintiff fell is a concrete driveway apron that transitions to a granite curb.   The affiant further states that the concrete driveway apron is not part of New Haven's public highway or sidewalk system, New Haven does not possess or control the apron and New Haven has no duty to maintain or repair it.

The plaintiff has provided uncertified ¹ excerpts of transcripts of depositions of Mr. Miller and Jeffrey Pescosolido, who presumably is another employee of New Haven.²  Neither of these transcript excerpts rebuts New Haven's contention that it did not possess or control the area where the plaintiff fell.

“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 the duty;  causation;  and actual injury.”  LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).  “To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty ․ The existence of a duty is a question of law ․ Only if such a duty is found to exist does the trier of fact then determine whether the [defendant] violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 698, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).

In viewing the evidence in the light most favorable to the plaintiff, New Haven has satisfied its burden of proving no genuine issue of material fact exists as to whether it owed a legal duty to the plaintiff.   The plaintiff has not shown that there is a genuine issue of material fact as to New Haven's lack of possession or control of the area where she fell.   Absent a duty, New Haven has no obligation to the plaintiff.

ORDER:

The defendant's motion for summary judgment (116.00) is granted.   The objection (121.00) is overruled.

Robert E. Young, J.

FOOTNOTES

FN1. The parties have each attached to their submissions uncertified pages of deposition transcripts.   Despite New Haven's claim that it attached certified copies of the excerpts, merely attaching a photocopy of the court reporter's certification of the full transcript does not constitute certification of transcript excerpts.   The plaintiff makes no claim at all of authenticity of her excerpts.   Because the excerpts were not edifying as to the issue of New Haven's possession and control of the subject area, and the issue was not raised by either party, the court overlooks the parties' failure to comply with P.B. § 17–45.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)..  FN1. The parties have each attached to their submissions uncertified pages of deposition transcripts.   Despite New Haven's claim that it attached certified copies of the excerpts, merely attaching a photocopy of the court reporter's certification of the full transcript does not constitute certification of transcript excerpts.   The plaintiff makes no claim at all of authenticity of her excerpts.   Because the excerpts were not edifying as to the issue of New Haven's possession and control of the subject area, and the issue was not raised by either party, the court overlooks the parties' failure to comply with P.B. § 17–45.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

FN2. The presumption is based upon the assertions made by the parties in their filings and at oral argument..  FN2. The presumption is based upon the assertions made by the parties in their filings and at oral argument.

Young, Robert E., J.