Donna Szatkowski v. Nicholas Davidson et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 127.00)

On August 31, 2010, the plaintiff, Donna Szatkowski,¹ commenced this action against the defendants, Nicholas Davidson, James Davidson and Family Garage, Inc. (Family Garage).²  Following a request for leave to amend, the plaintiff filed a two-count second amended complaint on January 31, 2012.³  Specifically, count one alleges common-law negligence and negligence per se claims against the defendant based on the allegation that he negligently operated a motor vehicle.   Count one also alleges that Davidson is liable under a common-law vicarious liability theory.

The plaintiff alleges the following facts in count one of the second amended complaint.   The plaintiff is the owner of property located at 546 White Plains Road in Trumbull, Connecticut.   Davidson and the defendant are father and son, respectively.   Davidson was the owner of a motor vehicle and maintained it as a family car.   On July 23, 2009, at approximately 11:00 p.m., the defendant was involved in a on-car accident whereby he drove the vehicle onto the plaintiff's property and struck a utility pole.   As a result of the accident, glass and debris from the vehicle were scattered across the property.⁴  The next morning, the plaintiff walked on her front lawn in order to investigate the damage from the accident, and slipped and fell on the debris that had accumulated on the property.   Consequently, the plaintiff suffered various injuries and damage to her property.

The plaintiff alleges, inter alia, that the defendant's carelessness and negligence caused her injuries “in that ․ [ (a) ] he was inattentive and failed to maintain a proper lookout ․ [ (d) ] he failed to operate [the] vehicle in a reasonable and prudent manner ․ [ (e) ] he was operating a motor vehicle with defective steering and/or braking mechanisms ․ in violation of [General Statutes] § 14–80h ․ and [ (f) ] he was operating [the] vehicle at a rate of speed greater than was reasonable, having regard to the width, traffic, use of the highway, intersection of streets and weather conditions then and there existing, in violation of [General Statutes] § 14–218a.” ⁵

On October 31, 2011, the defendants filed a motion for summary judgment as to count one on the ground that they do not owe a duty to the plaintiff.   In support of their motion, the defendants filed a memorandum of law and incorporated by reference evidence attached to the motion for summary judgment filed by Family Garage on October 26, 2011.   Specifically, the defendants rely upon copies of:  (1) An unauthenticated police report;  (2) an uncertified deposition transcript of the plaintiff;  and (3) an uncertified deposition transcript of Joseph Szatkowski.   On December 23, 2011, the plaintiff filed a memorandum in opposition to the defendants' motion.   In support of her opposition memorandum, the plaintiff submitted the following documents:  (1) A certified copy of the defendant's deposition testimony;  (2) a certified copy of the police report;  and (3) unauthenticated copies of the accident scene.   This matter was heard at short calendar on January 3, 2012.

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 ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012).  “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 such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner ․ Summary judgment is particularly ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law․”  (Citation omitted;  internal quotation marks omitted.)  Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004).

The defendants argue that the plaintiff, as a possessor of the property, had the primary obligation to maintain it in a safe condition, and thus, it is not reasonably foreseeable that the defendants' failure to remove the debris from the property would cause the plaintiff's injury.⁶  In support of their argument, the defendants discuss the law of premises liability and the duty a possessor of land owes to an invitee.   Based upon these principles, the defendants assert that they did not owe a duty to the plaintiff, as “[t]he undisputed facts establish that the [plaintiff], not the [d]efendants, are the owners and possessor in control of their property.”   In addition, the defendants contend that the plaintiff cannot prove that they had actual or constructive knowledge of the existence of a defect or that the defect existed for a sufficient amount of time for the defendants to have discovered and remedied it.

In opposition, the plaintiff argues that the defendants improperly rely upon uncertified deposition transcripts in support of their motion.   Moreover, the plaintiff argues, inter alia, that the defendants owed a duty to the plaintiff, as a motor vehicle operator has a duty to keep the vehicle under proper control at all times.   According to the plaintiff, “[a]n ordinary prudent person in the position of the defendant, who had a duty to keep his motor vehicle in control at all times, should have anticipated that operating his vehicle at a high rate of speed while it was raining heavily, could lose control over his vehicle ․ resulting in the type of harm suffered by the plaintiff in this case.” ⁷  As a result, the plaintiff contends that the court should deny the defendants' motion for summary judgment.

I

As a preliminary matter, the court must determine whether it may consider the evidence submitted by the defendants in support of their motion.  Practice Book § 17–45 provides in relevant part:  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”  “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citation omitted;  internal quotation marks omitted.)  Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 493, 21 A.3d 889, cert. granted in part on other grounds, 302 Conn. 934, 28 A.3d 991 (2011).

“Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)   Id., 492.   In the absence of an objection by an opposing party, “this court ․ has considered uncertified deposition transcripts and other documentary evidence ․” Trungadi v. Mauer, Superior Court, judicial district of Fairfield, Docket No. CV 07 5008732 (November 21, 2011, Bellis, J.) (53 Conn. L. Rptr. 9, 10), citing Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006);  Pellegrino v. Jack, Superior Court, judicial district of Fairfield, Docket No. CV 06 5006035 (December 2, 2008, Bellis, J.) (46 Conn. L. Rptr. 736, 738 n.1).   Even if a party objects to uncertified deposition transcripts, an opposing party may file a supplemental submission of certified transcripts in order to cure the objection.   Olsen v. Gottlieb, Superior Court, judicial district of New Haven, Docket No. CV 09 5030267 (May 9, 2011, Burke, J.);   Russo v. DeWolfe Co., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 05 4001918 (October 23, 2006, Stevens, J.).

In the present case, the defendants rely upon uncertified deposition transcripts of the plaintiff and Joseph Szatkowski that were submitted by Family Garage in support of its separate motion for summary judgment.   The plaintiff objects to the court's consideration of the uncertified transcripts.⁸  However, Family Garage filed a reply memorandum on December 29, 2011, whereby it resubmitted the relevant deposition transcripts with the proper certification pages.   As a result, the court will consider the deposition transcripts as support for the defendants' motion.

II

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   (Internal quotation marks omitted.)  Twin Oaks Condominium Assn., Inc. v. Jones, 132 Conn.App. 8, 12, 30 A.3d 7 (2011).  “If a plaintiff cannot prove all of those elements, the cause of action fails.”  (Internal quotation marks omitted.)  Grignano v. Milford, 106 Conn.App. 648, 652, 943 A.2d 507 (2008).   Specifically, “[t]he 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 [breached] that duty in the particular situation at hand.”   (Internal quotation marks omitted.)  Leon v. DeJesus, 123 Conn.App. 574, 576, 2 A.3d 956 (2010).  “[U]nder some circumstances, the question involves elements of both fact and law.”  LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).   While the question of whether a defendant owes a duty of care may be an appropriate matter for summary judgment;  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003);  it should not be rendered if the issue of duty involves elements of both fact and law.  Raboin v. North American Industries, Inc., 57 Conn.App. 535, 538, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 505 (2000).

“The existence of a duty of care is a prerequisite to a finding of negligence.”  (Internal quotation marks omitted.)  Leon v. DeJesus, supra, 123 Conn.App. 576.   In order to establish the existence of a legal duty, a plaintiff must satisfy both prongs of a two-part test.  Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 528–29, 832 A.2d 1180 (2003).  “Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.”  (Internal quotation marks omitted.)  Leon v. DeJesus, supra, 576.  “The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.”  (Internal quotation marks omitted.)  Neuhaus v. DeCholnoky, 280 Conn. 190, 218, 905 A.2d 1135 (2006).⁹

“[O]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant ․ By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?  ․ The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow ․ Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation ․ would obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 139, 811 A.2d 687 (2002), citing LePage v. Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002);  Mirjavadi v. Vakilzadeh, 128 Conn.App. 61, 75–76, 18 A.3d 591, cert. granted in part on other grounds, 301 Conn. 929, 23 A.3d 724 (2011);  see also Stokes v. Lyddy, 75 Conn.App. 252, 270 n.17, 815 A.2d 263 (2003) (stating that the foreseeability analysis, as applied to allegations in that case, involved an issue of fact);  Monk v. Temple George Associates, LLC, 82 Conn.App. 660, 676–77, 846 A.2d 933 (2004) (Bishop, J., dissenting) (stating that on a motion for summary judgment, unless a court can conclude that fair and reasonable persons could reach but one conclusion that the harm was not foreseeable, the issue of foreseeability remains a factual question for a jury), rev'd, 273 Conn. 108, 869 A.2d 179 (2005);  Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV 07 5009974 (August 7, 2009, Sheldon, J.) (48 Conn. L. Rptr. 382, 385–86) (“there is sufficient evidence for the fact finder to consider whether [the defendant] knew or should have known that harm of the same general nature of that which was suffered by [the plaintiff] would result from its [alleged negligent conduct]”);  Peterson v. Boys & Girls Club of America, Superior Court, judicial district of Hartford, Docket Nos. CV 07 5009783, CV 07 5009781 (May 5, 2009, Wagner, J.T.R.) (holding that the issue of foreseeability is a question more appropriate for the trier of fact where reasonable minds can differ);  Brazeau v. Thormahlen, Superior Court, judicial district of New Britain, Docket No. CV 06 5002231 (March 30, 2007, Pittman, J.) [43 Conn. L. Rptr. 143] (“[h]ere, in the chain of causation, the link, though hardly direct, is close enough for the issue of foreseeability to become less a question of law than a question of fact”);  Burban v. Hill Health Corp., Superior Court, judicial district of New Haven, Docket No. CV 01 0446764 (December 12, 2006, Robinson, J.) (“[t]he determination of foreseeability in this case, as in most cases, is properly left with the trier of fact”).

“[D]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable ․ Due care is always predicated on the existing circumstances.”  (Citations omitted;  internal quotation marks omitted.)  Lodge v. Arett Sales Corp., 246 Conn. 563, 574–75, 717 A.2d 215 (1998).  “Liability may not be imposed merely because it might have been foreseeable that some accident could have occurred;  rather, liability attaches only for reasonably foreseeable consequences.”  (Emphasis in original.)  Id., 577;  see also Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980) (“so long as harm of the general nature as that which occurred is foreseeable there is a basis for liability even though the manner in which the accident happens is unusual, bizarre or unforeseeable”);  see, e.g., 2 Restatement (Second), Torts § 281, illustration 2, p. 5 (1965).

The evidence submitted for consideration of the present motion includes the following evidence.   On July 23, 2009, at approximately 11 p.m., the defendant was driving on White Plains Road in Trumbull.   The speed limit on the road is forty miles per hour and it was raining heavily.   The defendant was traveling at approximately fifty miles per hour.   The defendant's vehicle hydroplaned, spun 180 degrees off the road, and crashed into a utility pole.   The plaintiff's property borders the road where the defendant crashed the vehicle.¹⁰  As a result of the accident, the vehicle's rear windshield smashed, causing debris to fall on the property.

On the night of the accident, the plaintiff was home and went to sleep at approximately 10:00 p.m. The plaintiff did not hear the accident, but awoke at 3:30 a.m. to discover that her home lacked electrical power.   After noticing a yellow light flickering in a window, the plaintiff woke up her husband.   The husband walked outside and spoke with a police officer, who told him that “there was a car and it hit the utility pole.”   At this time, the plaintiff did not walk outside of her home.   Later that morning, at approximately 6 or 7 a.m., the plaintiff and her husband walked outside on their front lawn in order to take photographs of any damage caused by the accident.   While walking about twenty feet away from the utility pole, the plaintiff fell on the debris located on her property and sustained multiple injuries.  (Pl.'s Dep. 27:23–28:1, Defs.' Ex. 3.)

In the present case, the undisputed evidence submitted by both parties is sufficient for a finder of fact to consider whether the defendant's alleged negligence and the plaintiff's alleged injuries are within the scope of foreseeability.   Specifically, a jury could determine, in view of the rainy conditions, the defendant's rate of speed, and the close proximity of the plaintiff's home, that an ordinary person would foresee that the plaintiff would suffer harm from the debris occurring as a result of the defendant's alleged negligent operation of the vehicle.   Accordingly, summary judgment is inappropriate, as the question of whether the defendant owed the plaintiff a duty creates issues of fact that are to be resolved by the trier of fact.¹¹

Notwithstanding the above, the defendants argue that the duty the plaintiff owes to an invitee to reasonably inspect the property translates into a finding that the plaintiff's injuries could not be foreseeable to the defendants, as a matter of law, because the plaintiff has the primary obligation to maintain the property in a safe condition.¹²  The law of premises liability does not apply, however, to the factual allegations of the present case.   The defendants fail to cite any precedent and the court is unaware of any authority under the foreseeability prong that the duty owed to an invitee by a possessor of land insulates an alleged tortfeasor from liability after the tortfeasor creates an unsafe condition on a landowner's property, which subsequently causes injuries to the landowner.   Accordingly, the defendants' argument is unavailing.¹³

Based on the foregoing, this court need not consider whether the defendants owed a duty to the plaintiff pursuant to her negligence per se allegations.   “In Connecticut, there is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint ․ [T]he majority of the cases [however] do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment.”  (Internal quotation marks omitted.)   Doe v. Westport Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 08 5015710 (February 29, 2012, Bellis, J.).   In Doe v. Westport, this court recently followed the majority rule.   Therefore, in the absence of appellate authority to the contrary, this court will remain consistent and adhere to its prior ruling.   Thus, even assuming, arguendo, that the defendants did not owe a duty to the plaintiff under her negligence per se allegations, Connecticut procedure does not permit an entry of summary judgment as to an individual allegation or claim within a count of a complaint.

CONCLUSION

Based on the foregoing, the defendants' motion for summary judgment is denied.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. Joseph Szatkowski was also a plaintiff in this action, alleging a loss of consortium claim against the defendants, Nicholas Davidson, James Davidson and Family Garage, Inc. On February 24, 2011, Joseph Szatkowski withdrew all of his claims and is no longer a party to this action..  FN1. Joseph Szatkowski was also a plaintiff in this action, alleging a loss of consortium claim against the defendants, Nicholas Davidson, James Davidson and Family Garage, Inc. On February 24, 2011, Joseph Szatkowski withdrew all of his claims and is no longer a party to this action.

FN2. Nicholas Davidson, the operator of the motor vehicle and the primary defendant, will be referred to as “the defendant.”   James Davidson, the owner of the motor vehicle, will be referred to as “Davidson.”   For purposes of this decision, “the defendants” shall refer to both the defendant and Davidson.   Family Garage moved separately for summary judgment, which is the subject of a separate decision also filed on this date..  FN2. Nicholas Davidson, the operator of the motor vehicle and the primary defendant, will be referred to as “the defendant.”   James Davidson, the owner of the motor vehicle, will be referred to as “Davidson.”   For purposes of this decision, “the defendants” shall refer to both the defendant and Davidson.   Family Garage moved separately for summary judgment, which is the subject of a separate decision also filed on this date.

FN3. The second amended complaint was filed after oral argument was heard on the defendants' motion for summary judgment.   The defendants did not object to the second amended complaint and therefore, it is the operative complaint.   See Practice Book § 10–60(a)(3) (“[i]f no objection ․ has been filed by any party within fifteen days from the date of the filing of [a] request [for leave to amend], the amendment shall be deemed to have been filed by consent of the adverse party”).   The allegations in the second amended complaint are substantially similar to those alleged in the first amended complaint.   This memorandum will address the merits of the defendants' motion as to the allegations in the second amended complaint..  FN3. The second amended complaint was filed after oral argument was heard on the defendants' motion for summary judgment.   The defendants did not object to the second amended complaint and therefore, it is the operative complaint.   See Practice Book § 10–60(a)(3) (“[i]f no objection ․ has been filed by any party within fifteen days from the date of the filing of [a] request [for leave to amend], the amendment shall be deemed to have been filed by consent of the adverse party”).   The allegations in the second amended complaint are substantially similar to those alleged in the first amended complaint.   This memorandum will address the merits of the defendants' motion as to the allegations in the second amended complaint.

FN4. The glass and debris from the accident will be referred to as the “debris.”.  FN4. The glass and debris from the accident will be referred to as the “debris.”

FN5. Section 14–80h provides in relevant part:  “Each motor vehicle ․ shall be equipped, when operated on a highway, with at least two braking systems one of which shall be a service brake system and the other a parking brake system.   Each braking system shall have a separate means of application by the operator.   Each braking system, including any power assist devices used to reduce operator braking effort, shall be maintained in good working order at all times.”  Section 14–218a provides in relevant part:  “No person shall operate a motor vehicle upon any public highway of the state, or road ․ at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions.”.  FN5. Section 14–80h provides in relevant part:  “Each motor vehicle ․ shall be equipped, when operated on a highway, with at least two braking systems one of which shall be a service brake system and the other a parking brake system.   Each braking system shall have a separate means of application by the operator.   Each braking system, including any power assist devices used to reduce operator braking effort, shall be maintained in good working order at all times.”  Section 14–218a provides in relevant part:  “No person shall operate a motor vehicle upon any public highway of the state, or road ․ at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions.”

FN6. The plaintiff does not allege, however, that the defendants negligently failed to remove the debris from the property.   Rather, the negligent conduct alleged against the defendants involves the operation of a motor vehicle..  FN6. The plaintiff does not allege, however, that the defendants negligently failed to remove the debris from the property.   Rather, the negligent conduct alleged against the defendants involves the operation of a motor vehicle.

FN7. The plaintiff further argues that “[t]he defendants ․ fail to address the issue of causation in their brief ․” The plaintiff dedicates three pages of her memorandum to arguing that an issue of material fact exists as to the question of causation.   The defendants do not move, however, for summary judgment on the ground that they did not cause the plaintiff's injuries.   Accordingly, the plaintiff's discussion involving the causation element of a negligence cause of action is irrelevant for purposes of the present motion..  FN7. The plaintiff further argues that “[t]he defendants ․ fail to address the issue of causation in their brief ․” The plaintiff dedicates three pages of her memorandum to arguing that an issue of material fact exists as to the question of causation.   The defendants do not move, however, for summary judgment on the ground that they did not cause the plaintiff's injuries.   Accordingly, the plaintiff's discussion involving the causation element of a negligence cause of action is irrelevant for purposes of the present motion.

FN8. While challenging the defendants' unauthenticated documents, the plaintiff cites to unreported Superior Court decisions but does not attach copies of the opinions as required by Connecticut practice rules.   See Practice Book § 5–9 (“[a]n opinion which is not officially published may be cited before a judicial authority only if the person making reference to it provides the judicial authority and opposing parties with copies of the opinion”)..  FN8. While challenging the defendants' unauthenticated documents, the plaintiff cites to unreported Superior Court decisions but does not attach copies of the opinions as required by Connecticut practice rules.   See Practice Book § 5–9 (“[a]n opinion which is not officially published may be cited before a judicial authority only if the person making reference to it provides the judicial authority and opposing parties with copies of the opinion”).

FN9. See, e.g., W.J. Cardi, “Purging Foreseeability:  The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts,” 58 Vand. L.Rev. 739 (2005) (setting forth a compelling argument for removing the foreseeability analysis from the duty test)..  FN9. See, e.g., W.J. Cardi, “Purging Foreseeability:  The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts,” 58 Vand. L.Rev. 739 (2005) (setting forth a compelling argument for removing the foreseeability analysis from the duty test).

FN10. The police report submitted by both parties indicates that a sidewalk immediately borders the road where the defendant crashed the vehicle, and that after spinning off the road, the defendant drove over grass located between the road and the sidewalk.   The report further indicates that the utility pole is located on the grass between the road and sidewalk..  FN10. The police report submitted by both parties indicates that a sidewalk immediately borders the road where the defendant crashed the vehicle, and that after spinning off the road, the defendant drove over grass located between the road and the sidewalk.   The report further indicates that the utility pole is located on the grass between the road and sidewalk.

FN11. It necessarily follows from this conclusion that Davidson is not entitled to summary judgment as to the plaintiff's vicarious liability claim..  FN11. It necessarily follows from this conclusion that Davidson is not entitled to summary judgment as to the plaintiff's vicarious liability claim.

FN12. “A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.”  (Citation omitted.)  Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).  “Invitees fall into certain general categories.   A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public ․ A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  (Internal quotation marks omitted.)  Gargano v. Azpiri, 110 Conn.App. 502, 506, 955 A.2d 593 (2008)..  FN12. “A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.”  (Citation omitted.)  Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).  “Invitees fall into certain general categories.   A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public ․ A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  (Internal quotation marks omitted.)  Gargano v. Azpiri, 110 Conn.App. 502, 506, 955 A.2d 593 (2008).

FN13. The court is cognizant that “[a] simple conclusion that the harm to the plaintiff was foreseeable ․ cannot by itself mandate a determination that a legal duty exists.   Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ․ A further inquiry must be made, for [our Supreme Court] recognize[s] that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.”  (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 594, 945 A.2d 388 (2008);  see, e.g., 60A C.J.S. 472, Motor Vehicles § 699 (2002) (“[a]s a general rule, the operator of a motor vehicle on a highway has the duty to use due care to avoid injury to occupants of, or persons on, private premises contiguous to the highway”).   Nevertheless, the defendants fail to address the public policy prong of the legal duty test, and consequently, the court does not need to consider the issue..  FN13. The court is cognizant that “[a] simple conclusion that the harm to the plaintiff was foreseeable ․ cannot by itself mandate a determination that a legal duty exists.   Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ․ A further inquiry must be made, for [our Supreme Court] recognize[s] that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.”  (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 594, 945 A.2d 388 (2008);  see, e.g., 60A C.J.S. 472, Motor Vehicles § 699 (2002) (“[a]s a general rule, the operator of a motor vehicle on a highway has the duty to use due care to avoid injury to occupants of, or persons on, private premises contiguous to the highway”).   Nevertheless, the defendants fail to address the public policy prong of the legal duty test, and consequently, the court does not need to consider the issue.

Bellis, Barbara N., J.