Jeanette Miles v. Anthony DelMonico (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BACKGROUND

The uncontested facts are as follows.   On July 2, 2007, the plaintiff, Jeanette Miles, a police officer, together with her partner, was “assigned to stop or discourage civilians from using illegal fireworks.” 122.00, motion and memorandum in support of summary judgment, exhibit A, excerpt of deposition transcript of plaintiff, Jeanette Miles, pp. 36–37.¹  The plaintiff approached the premises of the defendant, Anthony Delmonico, from the beach and addressed people who were on a deck on the defendant's premises concerning the possible possession and ignition of fireworks.  Id., pp. 37–38.  “And then my partner and I joined [the defendant] on the deck.   As we spoke to him, his wife came outside and they agreed that they would no longer ignite the fireworks.”  Id., p.39. The plaintiff does not recall that the defendant invited her onto the deck.  Id., pp. 39–40.

In an attempt to descend from the deck to the beach, the plaintiff stepped on the top of the stairs, which toppled, causing her to fall.  Id., pp. 47–48.   The plaintiff alleges she sustained injury and damages as the result of the defendant's negligence in failing to properly secure the stairs to the deck. 109.00, amended complaint, ¶¶ 2, 4, 5.

In her amended complaint, the plaintiff asserts she was “an invitee and a visitor” to the defendant's premises.  Id., ¶ 1.   In his motion for summary judgment, the defendant asserts that the plaintiff “had the status of a licensee when she fell due to the firefighter rule and that the Defendant didn't breach any duty owed to the Plaintiff as a result of her licensee status.” 122.00, motion for summary judgment.   Although the plaintiff notes that there is a dispute as to whether she was an invitee or licensee, it appears from her objection that she concedes she was a licensee and the so-called “firefighter's rule” applies. 126.00, objection to motion for summary judgment.

The city of New Haven [“New Haven”] has intervened in this matter, seeking reimbursement of its workers' compensation payments to the plaintiff.   Although the motion for summary judgment is not directed to the intervening plaintiff, granting of the motion would be dispositive of New Haven's claim, which is derivative of the plaintiff's claim.   See Acampora v. Asselin, 179 Conn. 425, 427–28, 426 A.2d 797 (1980) (derivative claim of comparative negligence failed when negligence claim failed);  Mulcahy v. Mossa, 89 Conn.App. 115, 124, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005) (derivative intervening complaint dismissed along with plaintiff's complaint);  Murray v. Commissioner of Transportation, 31 Conn.App. 752, 575, 626 A.2d 1328 (1993) (derivative claim of loss of consortium barred because named plaintiff's claim was barred).   New Haven has objected to the defendant's motion for summary judgment.   New Haven also appears to concede that the plaintiff's status was as a licensee.

Both the plaintiff and New Haven [collectively, “the plaintiffs”] have objected on the basis that the duty owed by the defendant is a question of fact for which the defendant has offered no evidence.   The plaintiff also asserts that the court should add a foreseeability exception to the firefighter's rule.

LEGAL STANDARD

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.”  Practice Book § 17–49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the 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 ․ A material fact ․ [is] a fact that will make a difference in the result of the case ․” (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2d 777 (2006).

“A motion for 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. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   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 issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Internal quotation marks omitted.)   Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “[T]he ‘genuine issue’ aspect of summary judgment procedure 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.”  (Internal quotation marks omitted.)  Id., 378–79.  “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  Id.

ANALYSIS

The “firefighter's rule is essentially a rule of premises liability”;  Levandoski v. Cone, 267 Conn. 651, 661, 841 A.2d 208 (2004);  and establishes that firefighters and police officers who enter premises in the performance of their duties are to be considered licensees rather than invitees.  Id., 653.   This “rule” originated in Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142 (1959), involving an injured firefighter.   The rule was applied to police officers in Furstein v. Hill, 218 Conn. 610, 590 A.2d 939 (1991).   The rule states that “a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee, and, therefore, [is] owed a duty of care that is less than that owed to an ordinary invitee.”  Levandoski v. Cone, supra, 653–54.   The duty of care that is required of landowners to invitees includes “an implied representation of safety ․ [I]t [would be] unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict.”  (Internal quotation marks omitted.)  Levandoski v. Cone, supra, 660.

The defendant asserts that, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him willfully or wantonly, citing Levandoski at 653–54.

In Furstein, our Supreme Court applied the liability standard for licensees set out in the Restatement (Second) of Torts, § 342 (1965):  “A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.   2 Restatement (Second), Torts (1965) § 342, p. 210.”  (Internal quotation marks omitted.)  Furstein v. Hill, supra, 218 Conn. 624–25.

The court does not reach the issue of applicability of the firefighter's rule.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matte of law.   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 ․” (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“As an initial matter, it is noted that a plaintiff generally does not have an obligation to prove her case prior to trial ․ [T]he burden shifts to the plaintiff to produce evidence to raise a genuine issue of material fact only once the defendants, as the moving parties, have met their initial burden of providing evidence sufficient to demonstrate the nonexistence of any genuine issue of material fact.   See Zielinski v. Kotsoris, supra, 279 Conn. 318–19;  Rockwell v. Quintner, 96 Conn.App. 221, 228–30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).   Leonard v. G W Management, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 05 5005016 (April 7, 2008, Upson, J.).

Assuming, arguendo, the defendant is correct that he does not have a heightened duty to the plaintiff because of the firefighter's rule, he has not addressed the issue of whether he has met the lesser duty owed to a licensee:  “Ordinarily, an owner of land owes no duty to a licensee to keep his premises in a safe condition, because the licensee must take the premises as he finds them, including any danger arising out of their condition.   A possessor of land is liable for bodily harm caused to a gratuitous licensee by a natural or artificial condition thereon if, but only if, he:  (a) knows of the condition, realizes that it involves an unreasonable risk to the licensee and has reason to believe that the licensee will not discover the condition or realize the risk, and (b) invites or permits the licensee to enter or remain on the land, without exercising reasonable care (1) to make the condition reasonably safe, or (2) to warn the licensee of the condition and the risk involved therein.”   (Citations omitted.)  Dougherty v. Graham, 161 Conn. 248, 251 (1971).

The burden of establishing that the defendant is entitled to judgment as a matter of law is upon the defendant.  Hurley v. Heart Physicians P.C., supra.   The defendant blithely asserts in his memorandum, “The undisputed facts show that the defendant did not breach any duty it owed to the plaintiff.”   The defendant offers no facts or evidence in support of this assertion.   In particular, the defendant has offered no evidence (1) that the condition alleged by the plaintiff did not exist, or (2) that he didn't know of the condition of the premises, or (3) that, knowing of the condition, he didn't realize it involved an unreasonable risk to the plaintiff with the resultant obligations.   Nothing submitted by any of the parties addresses this issue of material fact.

In his reply to the plaintiffs' objections, 127.00, the defendant asserts that the burden of establishing knowledge of the condition rests upon the plaintiff.   While that may be the plaintiffs' burden at trial, it is the burden of the defendant to proffer some evidence establishing the lack of such knowledge or that he has met the duty owed to the plaintiff if he wishes to prevail on summary judgment.

Even if the defendant had addressed the issue of duty owed to a licensee, he has not offered any evidence, nor has he even asserted, that he did not injure the plaintiff willfully or wantonly, a necessary fact requisite to prevailing under the firefighter rule.  Furstein v. Hill, supra, 218 Conn. 616.   As the defendant has not addressed these initial issues of material fact in his motion, the court cannot reach the issue of whether the firefighter rule is an exception to the duty imposed upon the defendant.   Therefore, summary judgment is not appropriate.

ORDER:

The defendant's motion for summary judgment (122.00) is denied.   The plaintiffs' objections to the motion (123.00 and 126.00) are sustained.

Robert E. Young, J.

FOOTNOTES

FN1. The plaintiff and the defendant have each attached to their submissions uncertified pages of deposition transcripts.   Because each party has failed to comply with Practice Book § 17–45 and neither has objected to the lack of compliance, the court will consider these submissions as if they were properly certified.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)..  FN1. The plaintiff and the defendant have each attached to their submissions uncertified pages of deposition transcripts.   Because each party has failed to comply with Practice Book § 17–45 and neither has objected to the lack of compliance, the court will consider these submissions as if they were properly certified.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

Young, Robert E., J.