Simmynora Drexler v. New Field Towers Realty Company et al. (2012)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS NEWFIELD TOWERS REALTY COMPANY AND CARABETTA MANAGEMENT COMPANY(# 141)

The defendants, Newfield Towers Realty Company (“Newfield”) and Carabetta Management Company (“Carabetta”), have moved for summary judgment in this case in which the plaintiff, Simmynora Drexler, alleges that she was injured on May 12, 2009 by an elevator at the Newfield Towers apartment complex, 220 Newfield Street, Middletown, Connecticut (the “Premises”) owned by Newfield and managed by Carabetta.

Facts

The defendants have supported their motion for summary judgment with a copy of the plaintiff's deposition and an affidavit of an employee of Carabetta.   At her deposition, which occurred on March 11, 2011, the plaintiff testified that she had never had any problems with the elevator door closing on any part of her body prior to the date of incident alleged in the complaint.¹  She also testified that she was unaware of any prior incidents where an elevator door at the subject premises had closed hard on the body parts of any other tenants, visitors or guests at the Premises.

The affidavit of the regional manager of Carabetta states that there were no reported prior incidents where the elevator doors at the Premises had closed hard onto the arm or other body part of any users, there were no other reported instances of elevator door malfunction in the weeks and months immediately preceding the plaintiff's May 12, 2009 alleged incident.   The manager further avers that there were no reported incidents or complaints from any tenants or guests about elevator doors at the Premises closing hard on anyone and that due to the plaintiff's 15–month delay in reporting the alleged incident, there was no post-incident inspection done.

The plaintiff has submitted repair work reports for the elevators at the subject premises from June 2008 through April 2009.   Those reports show the following:  on June 4, 2008 the elevator doors at the subject premises closed too fast and they were fixed;  November 18, 2008 Schindler Elevator personnel replaced a door operator belt on an elevator;  February 20, 2009 the elevator doors failed to open properly and the problem was repaired.

The plaintiff has also a letter from a Schindler Elevator (also a defendant) sales representative dated March 20, 2009, suggesting that Carabetta upgrade the elevators at the Premises.   The letter provides in pertinent part:

We appreciate the privilege of providing you with our services.   We are pleased to include as part of our service program a Capital Budget Plan to help keep your vertical transportation system operating at its best.   The recommendations contained in this report will benefit the building's owner's long term investment, building management's daily operation, and building guests and tenants' ever increasing expectations ․ The enclosed plan is designed to upgrade your building's vertical transportation system over a period of time in accordance with the building's requirements and yearly budget.   We recommend that you use this plan as a tool for budgeting and capital planning ․

Proposed Upgrade:  Door Operator–Replace;  Benefit Category:  Safety Performance.   Reliability;  Description and Benefits:  Remove existing obsolete and unreliable door operator, associate components and hardware.   Install a new modern operator that delivers more efficient and reliable service, and which complies with ASME code requirements for door closing force;  Unit Qty:  2;  Total:  $50,000.

Finally, the plaintiff has submitted inspection reports which purport to be from the Connecticut Department of Public Safety.   Three reports are from 1997 and do not say anything about elevator doors and one is from 2006 and states “adjust door closer to consistently close doors.”

Discussion of the Law and Ruling

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 ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under 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.”   (Citations omitted;  internal quotation marks omitted.)  Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251–52, 819 A.2d 773 (2003).  “A material fact ․ [is] a fact which will make a difference in the result of the case ․ Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary.”  (Citation omitted;  internal quotation marks omitted.)   H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001).   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. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

“Affidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testify to all matters stated in the affidavit ․ Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.”  Barasso v. Rear Still Hill Road, 81 Conn.App. 798, 803, 841 A.2d 252 (2004), citing United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).

It is not enough that the non-moving party merely asserts the existence of a disputed issue of material fact.  Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986).   Mere assertions of fact are insufficient to establish the existence of a disputed issue of material fact and, therefore, cannot refute evidence properly presented to the court in support of a summary judgment motion;  requiring the non-moving party to produce such evidence does not shift the burden of proof but rather it ensures that the non-moving party has not raised a specious issue for the sole purpose of forcing the case to trial.  Gold v. East Haddam, 290 Conn. 668, 678, 966 A.2d 684 (2009).

In order to establish liability for an injury caused by a dangerous condition on a landowner's premises, the plaintiff must prove that the landowner had either actual or constructive notice of the dangerous condition.  Grignano v. Milford, 106 Conn.App. 648, 652, 943 A.2d 507 (2008).   There can be no breach of duty to keep premises in a reasonably safe condition unless the defendant knew of the dangerous condition or was chargeable with notice of it.  Ricco v. Harbor Village Condominium Association, Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007).   The burden of proof rests on the plaintiff to offer evidence from which the jury could reasonably conclude that the defendant had notice of the allegedly dangerous condition and failed to take reasonable steps to remedy it after such notice.  Id. at 164.

In order to recover against the defendants, the plaintiff must prove that the defendants either had actual notice of the presence of a specific unsafe condition which caused her injury or constructive notice of it.   The notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect, even though subsequently in fact producing it.  Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002);  Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966);  Meek v. Wal–Mart Stores, Inc., 72 Conn.App. 467, 474, 806 A.2d 546 (2002).

A property owner has “constructive notice” of a dangerous condition, so as to give rise to a duty to correct the condition, where the condition exists for such length of time that the owner, in the exercise of reasonable care, should have discovered and remedied it.  Scholowski v. Medi Mart, Inc., 24 Conn.App. 276, 287, 587 A.2d 1056 (1991).

The certified copy of the plaintiff's deposition established that the incident about which the plaintiff complains occurred on May 12, 2009 around noon or in the early afternoon.   At that time the plaintiff had been working for Companions & Homemakers for about two months and her job duties included providing companionship, cleaning, cooking, and transportation to elderly and handicapped clients.

The Premises has two elevators which are located next to each other.   On May 12, 2009, the plaintiff was working with Carl Mazzota, who resided at the Premises.   Mazzotta had been one of the plaintiff's clients since she had started working for Companions & Homemakers.   During the two-month period when the plaintiff had worked for Companions & Homemakers she went to the Premises at least every other day.   Every time she went to see Mr. Mazzotta, she used one of the two elevators.   On occasions when she took Mr. Mazzotta shopping, she would use one of the two elevators.   When she took Mazzotta shopping she would use one of the two elevators four times in one day.

When the plaintiff arrived at the Premises on May 12, 2009, she used one of the elevators to get to Mazzotta's apartment.   She had no problem with the elevator.   After she made breakfast, she and Mazzotta went out shopping, again using the elevator without incident.   Upon their return from shopping, Mazzotta entered the elevator and the plaintiff stepped outside of the elevator to get the shopping cart.   She saw that the elevator door was closing and put out her right hand to stop the door and according to her testimony, the door “pinned” her.

Before the May 12, 2009, the plaintiff had used the elevators on multiple occasions and had never had any problem with either elevators on the Premises.   The plaintiff knew of no other tenants or visitors to the Premises who had had a problem with the elevator doors.

The affidavit of Carabetta's regional manager states that neither Carabetta nor Newfield was aware of any incidents prior to the plaintiff's alleged incident where the elevator doors at the premises had closed down on the arm or other body parts of anyone.   The affidavit further states that since the plaintiff did not report the alleged elevator malfunction until 15 months after the fact, Newfield and Carabetta had no reason to promptly inspect the elevators for that particular problem.

The defendants object to the repair reports, sales proposal letter from Schindler Elevator, and reports from the Department of Public Safety on several grounds.   First the defendants argue that those documents cannot be considered in opposition to summary judgment because they are hearsay and have not been properly authenticated.   They also argue that even if considered as true, those documents do not constitute evidence that the defendants had notice that the elevator doors had ever closed hard on anyone.

Practice Book Section 17–45 requires that a party opposing summary judgment file affidavits and other available evidence.   The rules of practice also require that sworn or certified copies of all documents referred to in an affidavit be attached thereto.  Practice Book Section 17–46.   Only evidence which would be admissible at trial may be used to support or oppose a summary judgment.  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–3, 663 A.2d 1001 (1995);  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997);  New Haven v. Pantani, 89 Conn.App. 675, 678 (2005);  USAA v. Warburg, 46 Conn.App. 99, 107–8, 698 A.2d 914 (1997).

Documents in support of or in opposition to a summary judgment motion may be authenticated by means of a certified copy of a document, or an affidavit of a person with personal knowledge that the offered evidence is an accurate representation of what the proponent claims it to be.  New Haven v. Pantani, supra, at 679.   When a plaintiff submits exhibits in opposition to a defendant's motion for summary judgment, but fails to attach an affidavit attesting to the truth and accuracy of the various submissions, to provide certified copies of any of the documents, or to authenticate the documents submitted, the court may properly refuse to consider the evidence.  Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn.App. 68, 73 (2008).

The defendants also correctly argue that the documents presented by the plaintiff in opposition to summary judgment are hearsay.   On summary judgment, hearsay statements are insufficient to contradict the facts offered by the opposing party.  Sheridan v. Board of Education, 20 Conn.App. 231, 240, 565 A.2d 882 (1989);  McColl v. Pataky, 160 Conn. 457, 460, 280 A.2d 146 (1971).

In order to recover against the defendants, the plaintiff must prove that the defendants either had actual notice of the presence of a specific unsafe condition which caused her injury or constructive notice of it.   The notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect, even though subsequently in fact producing it.  Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002);  Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966);  Meek v. Wal–Mart Stores, Inc., 72 Conn.App. 467, 474, 806 A.2d 546 (2002).

In light of the foregoing, even if the court overlooked the inadmissibility of the evidence presented by the plaintiff in opposition to summary judgment, the defendants would still be entitled to summary judgment, because even when that evidence is interpreted in a manner most favorable to the plaintiff, it does not constitute evidence that the defendants had notice that the elevator doors ever closed hard on anyone.

The repair records show that the elevators at the Premises received regular maintenance.   The only problem reported with either elevator was reported on 1/5/09 and had nothing to do with the doors closing hard—instead, the report was that the elevator was stuck between floors.

The sales pitch letter from Schindler Elevator's sales representative informed the defendants that for a price of at least $50,000, they could ensure better, safer elevators.   However, the letter was not evidence that the existing elevator doors were unsafe and certainly not evidence that they had closed hard on anyone.   The non-moving party may not rely on mere speculation or conjecture as to the nature of the facts to overcome a motion for summary judgment.   Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593–4, 960 A.2d 1071 (2008).

The most recent Department of Public Safety inspection report submitted is from 2006.   This is temporally irrelevant to the condition of the elevators in May of 2009.   Moreover, none of the inspection reports contain anything that would constitute notice of the door malfunctioning by closing too hard.

The evidence submitted by the plaintiff is insufficient to overcome the testimony of the plaintiff herself, and the affidavit of Carabetta's manager that there had been no problems with the elevator doors closing hard on anyone prior to the plaintiff's incident.   Summary judgment enters on Count One of the Second Amended Complaint in favor or the defendant, Newfield Towers Realty Company and on Count Three of the Second Amended Complaint in favor of the defendant, Carabetta Management Company.

By the Court,

Aurigemma, J.

FOOTNOTES

FN1. The use of “complaint” in this decision refers to the Second Amended Complaint dated January 21, 2011..  FN1. The use of “complaint” in this decision refers to the Second Amended Complaint dated January 21, 2011.

Aurigemma, Julia L., J.