Maritza Bok–Lopez v. LLC (2012)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 114)

FACTS

On October 7, 2010, the plaintiff, Maritza Bok–Lopez, filed a one-count complaint alleging premises liability.¹  The complaint alleges that on March 2, 2009, at approximately 1 p.m., the plaintiff was caused to slip and fall as a result of a dangerous condition of snow and ice in the parking lot of a shopping center located at 460 Elm Street, West Haven, resulting in injury.   The plaintiff further alleges that the defendant was responsible for plowing and snow removal at that location and that the defendant knew or should have known that the condition existed and created an unreasonable risk of injury to pedestrians.

On December 21, 2011, the defendant filed a motion for summary judgment on the ground that it did not owe the plaintiff a duty of care because the plaintiff fell during an ongoing snowstorm.   In support of the motion, the defendant filed a memorandum of law and submitted the following evidence:  (1) pages from the plaintiff's certified deposition transcript, (2) a certified copy of meteorological records from the National Climatic Data Center, and (3) a record of river and climatological observations from the University of Connecticut's Storrs station.   On February 15, 2012, the plaintiff filed an objection to the defendant's motion for summary judgment.   In support of the objection, the plaintiff submitted the signed and sworn affidavit of Juan Martinez.   The matter was heard at short calendar on March 5, 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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendant argues that there are no genuine issues of material fact in dispute and it is entitled to judgment as a matter of law.   Specifically, the defendant asserts that it has submitted uncontradicted evidence to show that there was an ongoing snowstorm at the time of the plaintiff's fall and therefore it owed no duty to the plaintiff under the ongoing storm doctrine articulated in Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989).   The plaintiff counters that she slipped on ice that was located underneath the fresh snow.   The plaintiff asserts therefore that a genuine issue of material fact remains as to whether the dangerous condition was created by the ongoing snowstorm or had existed prior to it.

“The existence of a duty of care is a prerequisite to a finding of negligence ․ The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”   (Internal quotation marks omitted.)  Leon v. DeJesus, 123 Conn.App. 574, 576, 2 A.3d 956 (2010).  “[I]n the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.   To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical ․ [This] does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended or whether a plaintiff's injury has resulted from new ice or old ice when the effects of separate storms begin to converge.”  (Emphasis added.)  Kraus v. Newton, supra, 211 Conn. 197–89.

In Berlinger v. Kudej, 120 Conn.App. 432, 991 A.2d 716 (2010), the Appellate Court reversed a trial court decision granting the defendant's motion for summary judgment.   The Appellate Court found that the plaintiff's affidavit, in which he stated that he believed the ice was from a prior precipitation, and the plaintiff's deposition testimony, in which he testified that he observed isolated patches of ice and slipped on ice, was enough to create a genuine issue of material fact as to “whether the driveway contained an icy accumulation prior to the morning” of the plaintiff's fall.  Id., 435–36.   In Briley v. Dolce/AEW Investments No. 1, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001820 (November 2, 2007, Roche, J.), the defendants submitted a weather report and pages from the plaintiff's deposition, arguing that the ongoing storm doctrine applied because the uncontradicted evidence showed “it began snowing the night before the plaintiff was injured and it continued to snow up until the time of the injury.”   In response, the plaintiff submitted an affidavit in which he stated that he had fallen on “old ice.”  Id. The court denied the motion for summary judgment, finding that the defendants “have not met their respective burdens in showing that there exists no genuine issue as to any material fact because although they have put forth uncontradicted evidence that it was snowing at the time of plaintiff's injury, they have failed to provide evidence that shows there was no ‘old ice’ on its property at that time.”  Id.

In support of its argument, the defendant submitted pages from the plaintiff's certified deposition transcript, a certified copy of meteorological records from the National Climatic Data Center and a record of river and climatological observations from the University of Connecticut's Storrs station.   The weather reports establish that there was precipitation throughout the day on March 2, 2009, including at the time of the plaintiff's fall.   Additionally, the plaintiff's deposition testimony establishes that it was snowing on the morning of the plaintiff's fall and up until the time of her injury.   The plaintiff testified that it was snowing when she first arrived at the grocery store and it was still snowing at the time of her fall, but she did not believe and could not recall whether there was freezing rain as well.   The plaintiff further testified that the parking lot was covered with snow and she was walking slowly because she sensed it was slippery.

The pages of the plaintiff's deposition transcript submitted by the defendant contain no testimony as to the actual condition that caused the plaintiff's fall.   In addition, after thoroughly reviewing the evidence submitted by the defendant in support of its motion for summary judgment, the defendant has not submitted any evidence to show that the parking lot had been clear of snow and ice prior to the storm on March 2, 2009.   The plaintiff, however, submitted the signed and sworn affidavit of Juan Martinez, in which he attests that he was with the plaintiff at the time of her fall and noticed that the area where she fell was “snow over a layer of ice underneath.”   A genuine issue of material fact remains as to whether the condition that caused the plaintiff's fall was created by the ongoing storm or had existed prior to it.   The defendant, therefore, has failed to meet its burden of proving the absence of a genuine issue of material fact.

CONCLUSION

Accordingly, the defendant has failed to meet its burden of proving the absence of a genuine issue of material fact and the defendant's motion for summary judgment is therefore denied.

Wilson, J.

FOOTNOTES

FN1. The complaint was brought against Ceruzzi Properties, LLC, West Haven Property Development, LLC, Stop & Shop Supermarket Company, LLC and West Haven Street Sweeping, LLC. The present motion was brought only by West Haven Street Sweeping, LLC, which will hereinafter be referred to as the defendant..  FN1. The complaint was brought against Ceruzzi Properties, LLC, West Haven Property Development, LLC, Stop & Shop Supermarket Company, LLC and West Haven Street Sweeping, LLC. The present motion was brought only by West Haven Street Sweeping, LLC, which will hereinafter be referred to as the defendant.

Wilson, Robin L., J.