Marylou Blume v. LLC (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DATED SEPTEMBER 20, 2011 (# 127.00)

Defendant, House of Fins, LLC., moves for summary judgment in this personal injury claim on twos grounds:  (1) The plaintiff did not file her complaint within the time prescribed by the statute of limitations for negligence actions, Gen.Stat. § 52–584, and (2) The plaintiff cannot show that any action of the defendant, House of Fins, LLC., resulted in her injuries.

The court has issued a Memorandum of Decision on the Motion for Summary Judgment filed by the defendant, 97 Bruce Park Avenue, LLC., of even date herewith.   The court incorporates by reference its findings and legal conclusions into this Memorandum of Decision.

The court now turns to the first issue, “The plaintiff did not file her complaint within the time prescribed by the statute of limitations for negligence actions, Gen.Stat. § 52–584,” The defendant, House of Fins, LLC., is invoking the negligence statute of limitations, General Statute § 52–584, the identical statute of limitations alleged in the co-defendant's Motion for Summary Judgment.   The lawsuit against House of Fins, LLC was commenced on the same date, November 9, 2010.   According to the return of service on file this was the same date that the other two co-defendants, Jaramillo Brothers Landscaping, LLC and 97 Bruce Park Avenue, LLC were served.   According to the letters dated November 19, 2008 and December 29, 2008, as of those dates the plaintiff had not ascertained the identity of the owner of the building nor the status of House of Fins, LLC in relation to the building at the corner of Bruce Park Avenue and Davis Avenue.   It seems reasonable to assume that a plaintiff falling in the stairway adjacent to the House of Fins' storefront, and immediately being hospitalized would not know as of that date the exact corporate name of the tenant who occupied the store.   Therefore, the determination of whether or not the plaintiff obtained that information between November 2, 2008 and November 9, 2008 is a material issue of fact that is to left to the trier of fact.   The first portion of the Motion for Summary Judgment must be denied.   Bayless v. The Purdue Frederick Company, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 09–5012157 S (November 14, 2011, Brazzel–Massaro, J.) [52 Conn. L. Rptr. 771].

The second issued raised is:  “The plaintiff cannot show that any action of this defendant, House of Fins, LLC resulted in her injuries.”   This is a negligence action.   In its Motion for Summary Judgment, the defendant, House of Fins, LLC, is claiming as a matter of law that the plaintiff will not be able to prove proximate cause for the injuries she sustained in a fall down the basement stairway immediately adjacent to the door to the House of Fins, LLC store, a basement allegedly accessed and used by House of Fins, LLC. The photographs attached in opposition to the Motion for Summary Judgment show that the building is located at the corner of Bruce Park Avenue and Davis Avenue.   There are two commercial establishments in the first floor of the building.   These two businesses occupy the entire first floor of the building.   The first business is the Bruce Park Grill, which fronts on Bruce Park Avenue and the second is the House of Fins, LLC, which fronts on Davis Avenue.   The plaintiff's allegations claim that the plaintiff was in her sister's car parked on David Avenue in front of House of Fins. Both left the car and walked down the sidewalk around the corner to the Bruce Park Grill.   They later picked up their dinner and walked back the same way.   As the plaintiff stepped backwards to permit her sister to open the car door, the plaintiff fell backwards through a doorway leading to a stairway to the basement immediately under the House of Fins, LLC store.   The plaintiff alleges that the defendant, Jaramillo Brother Landscaping, LLC, was hired by the House of Fins, LLC to clean out the basement.   One of the allegations of negligence against House of Fins, LLC was the fact that the basement door was left unlatched.   It would appear that in this premises liability action that the care, custody and control of the doorway that leads to the basement allegedly occupied by House of Fins, LLC is a distinct and material question of fact.   A fair inference from the plaintiff's testimony and the photographs is that the door, which looked like part of the wall and not a door, was unlatched and the unlatched door caused the plaintiff to fall down the stairs.   The plaintiff testified that she stepped back when her sister opened the car door and fell.   There is sufficient evidence from the photographs of the building, the door and the stairway along with the plaintiff's deposition testimony to support the plaintiff's claim made in her Objection:  “Nevertheless, a reasonable jury could conclude that Ms. Blume backed into the concealed unlocked door, which opened, causing her to lose her balance and fall down the stairs.” (# 136.00, page 9).

“Summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  Miller v. Bourgion, 28 Conn.App. 491, 497–98 (1992).   Causation “generally belong to the trier of fact because causation is essentially a factual issue.”  Stewart v. Federal Department of Stores, Inc., 234 Conn. 597, 611 (1995).   The matter of foreseeability is a question of proximate cause and “the question of proximate cause is ordinarily a question of fact for the trier.”  Burns v. Gleason Plant Security, Inc., 10 Conn.App. 480, 485 (1987).  “Conclusions of proximate cause are to be decided by the jury and not by the court.”  Fox v. Mason, 189 Conn. 484, 489 (1983).   Whether or not a particular outcome is foreseeable often includes a question of fact that must be left for the jury to determine.  Gutierrez v. Thorne, 13 Conn.App. 493, 500–01 (1988).  “Litigants have a constitutional right to have issues of fact decided by a jury ․ Summary Judgment procedure is especially ill-adapted to negligence cases where, the ultimate issue in contention involves a mixed question of fact of law and requires the trier of fact to determine whether the standard of care was met in a specific situation ․”Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 198 (1972).  “Issues of negligence are ordinarily not susceptible to summary adjudication, but should be resolved by trial in the ordinary manner.”  Id. 199.

Upon a review of all the documents and materials supplied in favor of and in opposition to the Motion for Summary Judgment, the court finds that whether the plaintiff's injuries were proximately caused by the negligence of the defendant, House of Fins, LLC, is a material issue of fact.   The second portion of the Motion for Summary Judgment must be denied.

The defendant's, House of Fins, LLC, Motion for Summary Judgment dated September 20, 2011 (# 127.00) is denied.

THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.