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

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 126.00)

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 two alleges a common-law negligence claim against the defendant.   The plaintiff alleges the following facts in count two of the second amended complaint.   The plaintiff is the owner of property located at 546 White Plains Road in Trumbull, Connecticut.   The defendant is a towing and automobile body repair facility located in Bridgeport, Connecticut.   On July 23, 2009, at approximately 11:00 p.m., Davidson was involved in a one-car accident whereby he drove a motor 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  Subsequently, the local police called and asked the defendant to respond to the accident scene in order to remove the vehicle and the debris from the property.   The plaintiff further alleges that the next morning, the plaintiff walked on her front lawn in order to investigate the damage from the accident.   Soon thereafter, the plaintiff 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 the plaintiff's injuries, “in that ․ [ (a) ] [it] caused or allowed and permitted ․ debris to remain on the front lawn of [the] plaintiff's premises, thereby creating and maintaining an unreasonably dangerous and defective condition ․ [ (b) ] [it] caused or allowed and permitted ․ debris to accumulate on the front lawn of [the] plaintiff's premises when [it] knew, or should have known, that the plaintiff and other persons lawfully on the premises were reasonably certain not to notice or avoid it ․ [©][it] failed to provide any warning, signal, caution or alarm to the plaintiff concerning the dangerous and defective condition on the premises ․ and [ (e) ] [it] failed to ․ [remove] all of the ․ debris from the premises before [it] left the accident scene in order to prevent the plaintiff ․ from falling and injuring [herself].”

On October 26, 2011, the defendant filed a motion for summary judgment as to count two on the ground that the defendant does not owe a duty to the plaintiff.   In support of its motion, the defendant submitted a memorandum of law and copies of the following documents:  (1) The original complaint dated August 25, 2010;  (2) an unauthenticated police report;  (3) an uncertified deposition transcript of the plaintiff;  and (4) an uncertified deposition transcript of Joseph Szatkowski.   On December 23, 2011, the plaintiff filed a memorandum in opposition to the defendant's motion.   In support of her opposition memorandum, the plaintiff submitted the following documents:  (1) A certified copy of the deposition testimony of King Beckwith, an employee of the defendant;  (2) an unauthenticated copy of a tow policy established by the Trumbull police commission;  and (3) a certified copy of the police report.   The plaintiff also incorporated by reference a certified copy of the deposition transcript of Davidson, which is attached to the plaintiff's memorandum in opposition to the Davidsons' motion for summary judgment.   On December 29, 2011, the defendant filed a reply memorandum and attached certified copies of the deposition transcripts of the plaintiff and Joseph Szatkowski.   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.)  Stewart v. Watertown, 303 Conn. 699, 709–10, (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 defendant argues 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 defendant's failure to remove the debris from the property would cause the plaintiff's injury.   The defendant further contends that it does not owe the plaintiff a duty of care as a matter of public policy because the plaintiff fails to satisfy § 324A(b) of the Restatement (Second), Torts.⁵  The defendant takes the position that the court should grant its motion for summary judgment, as the defendant does not owe a duty to the plaintiff.

In opposition, the plaintiff argues that the defendant improperly relies upon uncertified deposition transcripts in support of its motion.   The plaintiff further argues that “[the defendant] should have known that the ․ accident ․ would cause debris to land on someone's property and could result in an injury to someone.” ⁶  The plaintiff does not address, however, the defendant's argument under the public policy prong of the legal duty test.

As a threshold issue, the court must determine whether it may consider the evidence submitted by the defendant in support of its 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 defendant relies upon uncertified deposition transcripts of the plaintiff and Joseph Szatkowski in support of its motion for summary judgment.   The plaintiff objects to the court's consideration of the uncertified transcripts.⁷  However, in its reply memorandum, the defendant resubmitted the relevant deposition transcripts with the proper certification pages.   As a result, the court will consider the deposition transcripts as support for the defendant's 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).⁸

The first question is whether the plaintiff's allegations satisfy the foreseeability prong of the legal duty test.  “[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.

The evidence submitted for consideration of the present motion includes the following evidence.   On July 23, 2009, at approximately 11:00 p.m., Davidson was driving on White Plains Road in Trumbull.   The speed limit on the road is forty miles per hour and it was raining heavily.   Davidson was traveling at approximately fifty miles per hour.   Davidson's vehicle hydroplaned, spun 180 degrees off the road, and crashed into a utility pole.   The plaintiff's property borders the road where Davidson crashed the vehicle.⁹  As a result of the accident, the vehicle's rear windshield smashed, causing debris to fall on the property.

The evidence submitted also includes the following.   The defendant is on a towing rotation list for the town of Trumbull and must adhere to a tow policy established by the Trumbull police commission.   According to the tow policy submitted by the plaintiff, the chief of police or his designee may request towing services from tow operators on the list.   Specifically, § (IV)(K) of the tow policy provides in relevant part:  “The tow operator responding to the scene of an accident will be completely responsible for the removal of glass and/or debris from the accident scene.”   On the night of the accident, the defendant responded to the accident to remove the vehicle.   After placing the vehicle on the tow truck, the defendant removed the debris from the road and the grass.   In particular, Beckwith, an employee of the defendant, testified that “[t]here was debris that was cleaned ․ It had to be, the car was blown apart.”   In addition, Beckwith testified that “[I] cleaned up that whole entire area.   Matter of fact, I went over the curb and cleaned the crap off the grass too ․ I [do not] like it, because [the plaintiff is] saying I [did not] clean up.   And I did.   I know I did ․ I cleaned up the best I could.”   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.

Under the circumstances of the present case, it seems that an ordinary person, knowing what the defendant knew or should have known, would have anticipated that the plaintiff, as the owner of the property, might have suffered the harm if the defendant failed to take preventive measures by warning the plaintiff of the existence of the debris on the property or alternatively, by removing the debris from the property.   In any event, this question involves issues of fact to be resolved by a fact finder and thus, the defendant is not entitled to summary judgment under the foreseeability prong of the legal duty test.

Notwithstanding the above, the defendant argues that the duty owed to an invitee by the plaintiff to reasonably inspect the property translates into a finding that the plaintiff's injuries could not be foreseeable to the defendant, as a matter of law, because the plaintiff has the primary obligation to maintain the property in a safe condition.¹⁰  The defendant's argument is misplaced, as the law of premises liability does not apply to the factual allegations of the present case.   However, even if the law of premises liability applies, there is an issue of fact as to whether it is foreseeable that the plaintiff would be exposed to probable injury while maintaining or inspecting her property unless the defendant warned the plaintiff of the debris or alternatively, removed the debris.

The next issue involves the public policy prong of the legal duty test.  “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).

Our Supreme Court considers four factors in deciding whether public policy suggests the imposition of a duty:  “(1) [T]he normal expectations of the participants in the activity under review;  (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdictions.”  (Internal quotation marks omitted.)   Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005).

Here, the court will not apply the four factors to the circumstances of the present case, as the defendant fails to address any of them.   The defendant argues, however, that the plaintiff alleges a contract between the defendant and the police by claiming that the police asked the defendant to remove the debris from the plaintiff's property.   Based upon that premise, the defendant asserts that in Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), our Supreme Court adopted 2 Restatement (Second), Torts § 324A(b) (1965) to determine, under the public policy prong, whether a party owes a duty to a third person when that party contracts with another party to render services.   According to the defendant, the plaintiff does not satisfy § 324A(b), as the police owed no duty to the plaintiff with respect to the debris on the property.

In Gazo v. Stamford, supra, 255 Conn. 245, 249–58, our Supreme Court held that an independent contractor, who has a contractual relationship with a landowner to maintain its property in a safe condition, owes a duty of care to a plaintiff who suffers injuries after a slip and fall on icy and snowy conditions on the property.   In its analysis of the public policy prong, the court relied upon, inter alia, 2 Restatement (Second), supra, § 324A(b), which provides in relevant part:  “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if ․ (b) he has undertaken to perform a duty owed by the other to the third person ․ “ Id., 252–53.   Our Supreme Court adopted § 324A(b), under the circumstances of that case where a service was performed for consideration and in a commercial context.

As a preliminary matter, no evidence has been submitted that the defendant was paid for its towing services.   Even assuming, arguendo, that § 324A(b) is the threshold public policy test under the circumstances of this case, the defendant has not submitted evidence to demonstrate the absence of an issue of material fact as to whom the defendant was rendering services.   The defendant does not submit, e.g., a contract between the defendant and the police, or an affidavit establishing that the defendant was rendering services to the police.   Moreover, the tow policy submitted by the plaintiff does not support the defendant's position.¹¹  Although the police may request services from the defendant pursuant to the tow policy, the defendant may have been rendering services to Davidson by removing the vehicle.¹²  “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 issue exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 233.   While the court recognizes that the public policy issue involves a question of law, the defendant does not meet its initial burden on its summary judgment motion, as an issue of material fact remains under an analysis pursuant to § 324A(b).¹³

Further weakening its argument, the defendant did not provide any evidence or legal authority in support of its position that the police have no duty to remove the debris from the plaintiff's property.   The defendant simply argues that “the [police] did not place the debris on the plaintiff's property and was not responsible for its removal.   Thus [the defendant] could not have undertaken a duty owed by the [police] to the plaintiff as set forth in subparagraph (b) [of § 324].”   Connecticut courts have held that “[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.”  (Internal quotation marks omitted.)  Carabetta v. Carabetta, 133 Conn.App. 732, 736 (2012);  Santacapita v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 09 4028116 (August 9, 2011, Bellis, J.).   Consequently, the defendant is not entitled to summary judgment, as it fails to demonstrate the absence of a genuine issue of material fact under the public policy prong.

CONCLUSION

Based on the foregoing, the defendant's 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. For purposes of this memorandum, “the defendant” will refer only to Family Garage, “Davidson” will refer only to Nicholas Davidson, and Nicholas Davidson and James Davidson will be referred to collectively as the “Davidsons.”   James Davidson will not be discussed individually in this memorandum..  FN2. For purposes of this memorandum, “the defendant” will refer only to Family Garage, “Davidson” will refer only to Nicholas Davidson, and Nicholas Davidson and James Davidson will be referred to collectively as the “Davidsons.”   James Davidson will not be discussed individually in this memorandum.

FN3. The second amended complaint was filed after oral argument was heard on the defendant's motion for summary judgment.   The defendant 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 defendant's motion as to the allegations in the second amended complaint..  FN3. The second amended complaint was filed after oral argument was heard on the defendant's motion for summary judgment.   The defendant 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 defendant's 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. 2 Restatement (Second), Torts § 324A(b), p. 142 (1965) provides in relevant part:  “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if ․ (b) he has undertaken to perform a duty owed by the other to the third person ․.  FN5. 2 Restatement (Second), Torts § 324A(b), p. 142 (1965) provides in relevant part:  “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if ․ (b) he has undertaken to perform a duty owed by the other to the third person ․

FN6. In her opposition memorandum, the plaintiff focuses her argument on the second element of a negligence claim;  the breach of a duty.   Specifically, the plaintiff argues that the defendant agreed to adhere to the towing policy.   Thus, the plaintiff contends that an issue of fact exists as to whether the defendant “breach[ed] the duty owed to the plaintiff to remove all of the debris from the accident scene in accordance with the [towing policy].”   The defendant does not move, however, for summary judgment on the ground that the defendant did not breach its duty to the plaintiff.   Accordingly, the plaintiff's discussion involving the breach element of a negligence cause of action will not be addressed in the present motion..  FN6. In her opposition memorandum, the plaintiff focuses her argument on the second element of a negligence claim;  the breach of a duty.   Specifically, the plaintiff argues that the defendant agreed to adhere to the towing policy.   Thus, the plaintiff contends that an issue of fact exists as to whether the defendant “breach[ed] the duty owed to the plaintiff to remove all of the debris from the accident scene in accordance with the [towing policy].”   The defendant does not move, however, for summary judgment on the ground that the defendant did not breach its duty to the plaintiff.   Accordingly, the plaintiff's discussion involving the breach element of a negligence cause of action will not be addressed in the present motion.

FN7. While challenging the defendant's unauthenticated documents, the plaintiff cites to unreported Superior Court decisions without attaching a copy 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”).   Consequently, the court is not required to consider these decisions.   See Seaco Ins. Co. v. Devine Bros., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 00 0374721 (July 30, 2003, Doherty, J.) (35 Conn. L. Rptr. 235, 237 n.1) (declining to consider an unreported Superior Court decision not attached to a memorandum)..  FN7. While challenging the defendant's unauthenticated documents, the plaintiff cites to unreported Superior Court decisions without attaching a copy 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”).   Consequently, the court is not required to consider these decisions.   See Seaco Ins. Co. v. Devine Bros., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 00 0374721 (July 30, 2003, Doherty, J.) (35 Conn. L. Rptr. 235, 237 n.1) (declining to consider an unreported Superior Court decision not attached to a memorandum).

FN8. 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)..  FN8. 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. The police report submitted by both parties indicates that a sidewalk immediately borders the road where Davidson crashed the vehicle, and that after spinning off the road, Davidson 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..  FN9. The police report submitted by both parties indicates that a sidewalk immediately borders the road where Davidson crashed the vehicle, and that after spinning off the road, Davidson 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. “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)..  FN10. “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).

FN11. Even where the nonmoving party has no obligation to submit documents in opposition to a motion for summary judgment because the moving party's own evidence is insufficient to establish that there is no genuine issue of material fact, the court nevertheless may consider whether the evidence the nonmoving party chooses to submit supports the moving party's claim.   Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004).   While the defendant fails to submit any evidence as to whom the defendant was rendering services, the plaintiff submits the tow policy, which the court considered in determining the merits of the defendant's motion..  FN11. Even where the nonmoving party has no obligation to submit documents in opposition to a motion for summary judgment because the moving party's own evidence is insufficient to establish that there is no genuine issue of material fact, the court nevertheless may consider whether the evidence the nonmoving party chooses to submit supports the moving party's claim.   Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004).   While the defendant fails to submit any evidence as to whom the defendant was rendering services, the plaintiff submits the tow policy, which the court considered in determining the merits of the defendant's motion.

FN12. Furthermore, while Beckwith testifies that the defendant had to adhere to the tow policy, this does not, by itself, demonstrate that the defendant was rendering services to the police.   In many situations, an actor, while rendering a service, is required to follow policies, regulations, or ordinances promulgated by a municipality.   Nevertheless, this does not necessarily mean that the actor was rendering services to the municipality..  FN12. Furthermore, while Beckwith testifies that the defendant had to adhere to the tow policy, this does not, by itself, demonstrate that the defendant was rendering services to the police.   In many situations, an actor, while rendering a service, is required to follow policies, regulations, or ordinances promulgated by a municipality.   Nevertheless, this does not necessarily mean that the actor was rendering services to the municipality.

FN13. Additionally, the defendant's interpretation of Gazo is misplaced.   While our Supreme Court adopted § 324A(b) as support for finding a duty of care as a matter of policy;  Gazo v. Stamford, supra, 255 Conn. 252–53;  it did not hold that a failure to satisfy that section was fatal to a plaintiff's claim.   Moreover, our Supreme Court did not rely solely on that section, but rather considered three additional factors in its discussion of the public policy prong.  Id., 251–54.   This court does not agree with the defendant's broad reading of Gazo as establishing § 324A(b) as the dispositive test for determining a duty as a matter of policy under the circumstances of the present case..  FN13. Additionally, the defendant's interpretation of Gazo is misplaced.   While our Supreme Court adopted § 324A(b) as support for finding a duty of care as a matter of policy;  Gazo v. Stamford, supra, 255 Conn. 252–53;  it did not hold that a failure to satisfy that section was fatal to a plaintiff's claim.   Moreover, our Supreme Court did not rely solely on that section, but rather considered three additional factors in its discussion of the public policy prong.  Id., 251–54.   This court does not agree with the defendant's broad reading of Gazo as establishing § 324A(b) as the dispositive test for determining a duty as a matter of policy under the circumstances of the present case.

Bellis, Barbara N., J.