Eileen Petrillo v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 114)

I

FACTS

On March 31, 2010, the plaintiff, Eileen Petrillo, filed a two-count negligence complaint against the defendants, Big Daddy's Racing, LLC (“Big Daddy's”) and Connecticut Recreation and Parks Association, Inc. (“the Association”).¹  The complaint alleges the following relevant facts.   On or about November 24, 2008, the Association was an organizer of an amusement and recreational expo at the Mohegan Sun Convention Center in Uncasville, Connecticut.   The plaintiff and Big Daddy's were vendors attending the expo.   While in the process of setting up a display, the plaintiff suddenly and without warning, tripped and fell over poles, which blended in with the carpet and were laying across the doorway entrance to the convention center.   The poles belonged to Big Daddy's.   The plaintiff alleges that she suffered personal injuries as a result of the trip and fall.   Count two of the complaint alleges that the Association was negligent and/or careless in that it failed to have safety personnel insure the safety of all areas of the convention center;  failed to make sure warning signs were posted;  failed to provide order resulting in an unsafe area;  failed to have someone posted at the entrance and exit of the doorways;  and failed to have a proper means of egress at the loss location.   The complaint further alleges that the Association knew, or should have known, of the negligent condition of the convention center, especially at the exit/entryway.

On May 5, 2010, the Association filed an answer and special defense, asserting that the plaintiff's alleged injuries are the proximate result of her own negligence.   On May 6, 2010, the plaintiff filed an answer, denying all allegations in the Association's special defense.

On September 27, 2011, the Association filed the present motion for summary judgment along with a supporting memorandum of law and evidentiary support.   The plaintiff did not file an opposition.   The matter was heard on October 17, 2011 at 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

Analysis

The Association moves for summary judgment as to count two on the ground that there is no genuine issue of material fact that it owed no duty to the plaintiff.   The Association contends that the plaintiff does not predicate her claim on a statute or any contract which she claims existed between the parties, and the plaintiff does not allege that the Association was in possession or control of the premises.   Rather, the plaintiff's claim is predicated only upon the Association being an organizer of the expo.   The Association argues, however, that it did not have control over the matters about which the plaintiff complains sufficient to give rise to any duty.   According to the Association, sponsorship of an event, without the right to possession and/or control, does not subject the sponsor to liability for actions of third parties.   Furthermore, the Association argues that the area in which the plaintiff claims to have fallen was an area which Big Daddy's owned and controlled, and was a space approved by the Mohegan Sun fire department.   In support of its motion, the Association submits the affidavit of Alison Harle as well as excerpts from the uncertified deposition transcript of Muir Anderson.²

“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).   “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The existence of a duty is a question of law and 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.)   Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

“Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property ․ The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee ․ [T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question ․ Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination ․ [P]ossession cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.”  (Citations omitted;  internal quotation marks omitted.)  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453–54, 857 A.2d 439 (2004).

The Association cites several cases in support of the proposition that the mere sponsorship of an event, without the right to possession and/or control of the premises, does not subject the sponsor to liability for the actions of third parties.   First, in Previs v. Spano, Superior Court, judicial district of Fairfield, Docket No. CV 95 0327537 (March 20, 1998, Rush, J.) (21 Conn. L. Rptr. 539), the plaintiff instituted a negligence action for personal injuries sustained when she was thrown into a swimming pool.   The plaintiff alleged that Pfizer, Inc. “sponsored and paid for the social gathering,” and that she was only on the property at the invitation of Pfizer and the property owners.   Id. Pfizer filed a motion for summary judgment arguing “that it did not have possession and control of the premises sufficient to give rise to a duty of care owed to the plaintiff.”  Id. The court found that there was no evidence that “Pfizer exercised possession of the property or control over the social gathering.   Even if it could be said that Pfizer was in a position to influence what was done at the party, such influence, if it existed, does not rise [to] the level of the right of possession or the right to control.   Sponsorship of an event, without the right to possession and/or control, does not subject the sponsor to liability for action of third parties.”  Id., 539–40.

The Previs court distinguished Merhi v. Becker, 164 Conn. 516, 325 A.2d 270 (1973), stating “that in the case of Merhi v. Becker, 164 Conn. 516 (1973), the defendant ‘rented’ the picnic grounds upon which the plaintiff was injured and accordingly the defendant would have possession and/or control of the area involved.”  Previs v. Spano, supra, 21 Conn. L. Rptr. 540.   In Merhi, “the plaintiff, a member of Local 1010, attended an outdoor picnic planned and sponsored by the defendant Local 1010 for the benefit of its union members and their guests.”  Merhi v. Becker, supra, 164 Conn. 518.   The plaintiff was injured when an attendee “drove [his] car into the area of the picnickers, aimed and steered it in the direction of [his intended target, another attendee], but struck and injured the plaintiff instead.”  Id., 519.   The court found that “[a]s a paying guest at the picnic, the plaintiff had the status of an invitee ․ The defendant Local 1010, as the possessor of the premises on that day, had the duty of exercising reasonable care and control to protect its invitees from dangers which might reasonably be anticipated to arise from the conditions of the premises or the activities taking place there.”  (Citations omitted.)  Id., 519–20.

In Zarrelli v. Barnum Festival Society, Inc., 6 Conn.App. 322, 505 A.2d 25 (1986), also cited by the Association, the family of a parade participant who was run over by a float brought suit against the event organizer and sponsor.   The plaintiff sought to hold, inter alia, the Barnum Festival Society, Inc. (“Barnum”), as organizer, and Connecticut National Bank (“CNB”), as sponsor, liable under a theory of negligence.  Id., 323.   After a trial to a jury, the jury returned a verdict in favor of CNB and in favor of the plaintiff against Barnum.   On appeal, “[t]he plaintiff [claimed] that the evidence established that CNB was jointly liable for Barnum's negligence because CNB as a sponsor-agent of Barnum had broad authority over the construction and operation of the float.”  Id., 323–24.   The Appellate Court upheld the verdict in favor of CNB, finding that “[t]he evidence showed that CNB's role as a sponsor basically was limited to financial assistance.   It did not have that degree of control and management over the construction of the float that would impose liability on CNB under any theory.”  Id., 329.   The court noted that “CNB donated money to Barnum for the parade.   At the time CNB's funds were committed to the festival, it did not know that those funds would be used to construct a float.   CNB took no part in the supervision of the float's construction.”  Id., 324.

Additionally, in Kolodziej v. Durham Agricultural Fair Association, Inc., 96 Conn.App. 791, 901 A.2d 1242 (2006), our Appellate Court affirmed the granting of summary judgment in favor of the defendant, Durham Agricultural Fair Association, Inc., with regard to negligence and nuisance claims brought by the plaintiff's decedent who was struck by a motor vehicle on an adjacent public highway.   The Appellate Court framed the issue as “whether an association that invites members of the public to attend its agricultural fair has a duty of care to protect its attendees from accidental injury on an adjacent public highway.”  Id., 792.   On appeal, the plaintiffs argued that “in creating and implementing [a] traffic safety plan, the defendant should have realized that inadequacies in its outdated design would pose an unreasonable risk of physical harm to persons traveling to and from the fair.”  Id., 796.   The Appellate Court agreed with the lower court's finding that “the defendant owed no duty of care to the decedent ․ [T]he undisputed facts establish that the implementation of the allegedly deficient traffic safety plan, following its approval by the state traffic commission, rested exclusively with the town's board of selectmen and, thus, outside the defendant's legal authority or capacity.”  Id., 797.

In the present case, the Association submits the affidavit of Alison Harle, the executive director of the Association.   Harle attests that the Association was the organizer of the trade show at Mohegan Sun and, pursuant to a contract between the Association and Mohegan Sun, “all crated exhibits and trade show materials were required to go through a drayage company, and vendors could wheel” in equipment that was not crated.   The drayage company for the trade show was Demers Expo (“Demers”).   Demers “formulated the initial diagram setting forth the booth layout, or floor plan,” and “[p]ursuant to the contract between the Association and Mohegan Sun ‘all exhibits require[d] a floor plan approved by Mohegan Sun Fire Department.’  “ Harle attests that the floor plan submitted by Demers was approved by the Fire Department and, “[o]n November 24, 2008, a Mohegan Sun fire marshal was present at the convention center to confirm that exhibits were set up and installed in accordance with the floor plan which it had reviewed and approved.”

Harle also attests that Big Daddy's was an exhibitor at the expo, but is not an agent, servant or employee of the Association;  no one on behalf of the Association “was involved in installing or setting up the Big Daddy's Racing, LLC exhibit”;  the area where Big Daddy's set up its exhibit was an area approved by the fire marshal;  and at no time prior to the plaintiff's fall did anyone complain to Harle, or did Harle observe, that the aisles or doorway entrance in the area around Big Daddy's exhibit were not clear.

The Association also submits excerpts of the deposition of Muir Anderson, the owner of Big Daddy's.³  Anderson testified that the Mohegan Sun fire marshal was present in the convention center during the time when the exhibitors were setting up their booths and that the fire marshal did not indicate to Anderson that there was a problem with the location or the manner in which she was setting up.

Although the Association was the organizer of the expo, and not merely a passive sponsor, there is no evidence that the Association took control away from or even shared control with the drayage company, Mohegan Sun, the Mohegan Sun Fire Department and/or Big Daddy's so as to give rise to any control over the area where the plaintiff was injured.   Accordingly, the Association has met its burden of demonstrating that no genuine issue of material fact exists that it did not have possession and control over the area where the plaintiff fell, and therefore owed no duty to the plaintiff.   Moreover, the plaintiff did not file any counter affidavits raising a genuine issue of material fact as to possession and control of the subject area.   Rather, the evidence submitted by the Association shows that the layout of the convention center was performed by the drayage company and approved by the Mohegan Sun Fire Department.   The evidence also shows that a Mohegan Sun fire marshal was present at the convention center to confirm that exhibits were set up and installed in accordance with the floor plan.

The undisputed facts establish that the Association did not exert control over the convention center or the area where the plaintiff was injured.   Thus, there is no genuine issue of material fact that the Association did not owe a duty to the plaintiff.   Accordingly, the motion for summary judgment as to count two is granted.

Wilson, J.

FOOTNOTES

FN1. Count one is directed at Big Daddy's Racing, LLC and count two is directed at Connecticut Recreation and Parks Association, Inc..  FN1. Count one is directed at Big Daddy's Racing, LLC and count two is directed at Connecticut Recreation and Parks Association, Inc.

FN2. “While [a party's] deposition testimony is not conclusive as a judicial admission;  General Statutes § 52–200;  it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”   Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).   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).   The plaintiff did not file any memorandum of law in opposition to the motion for summary judgment, and has not objected to the Association's submission, therefore the court will consider the deposition..  FN2. “While [a party's] deposition testimony is not conclusive as a judicial admission;  General Statutes § 52–200;  it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”   Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).   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).   The plaintiff did not file any memorandum of law in opposition to the motion for summary judgment, and has not objected to the Association's submission, therefore the court will consider the deposition.

FN3. Muir identifies herself only as “self-employed” and that she “currently [has] a small entertainment business” named Big Daddy's Racing, LLC..  FN3. Muir identifies herself only as “self-employed” and that she “currently [has] a small entertainment business” named Big Daddy's Racing, LLC.

Wilson, Robin L., J.