Alyssa Buttrick v. Nancy Wilson (2012)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 138.01)

FACTS

This premises liability action arises from injuries allegedly sustained during a house party attended by teenagers.   On May 20, 2009, the plaintiff, Alyssa Buttrick, filed a revised complaint alleging that on November 21, 2007, she was an “invitee” at a party hosted by the defendant, Nancy Wilson, on premises that the defendant owned and controlled, and that while walking through the backyard of the property, she was cut by “a bayonet type slashing blade” that was “likely to lacerate persons walking by.”   The plaintiff further alleges that her injuries were caused by the defendant's negligence in that the defendant (1) maintained a dangerous, defective and unsafe condition on her property;  (2) failed to inspect or monitor her property for possibly dangerous conditions;  (3) failed to remove the dangerous condition;  and (4) failed to exercise the care of a reasonably prudent person under the circumstances.   The defendant, in turn, filed an answer on January 13, 2010, admitting that she owned and controlled the property in question but denying the remaining allegations or leaving them to the plaintiff's proof.   The defendant also asserted in a special defense that if the plaintiff did in fact suffer injuries in the manner alleged, it was caused by the plaintiff's own carelessness and not by the defendant's negligence.

The defendant thereafter moved for summary judgment on December 12, 2011, on the grounds that there are no genuine issues of material fact in regard to whether (1) the plaintiff was a trespasser upon the defendant's land;  (2) the defendant did not have actual or constructive notice of the dangerous condition that allegedly caused the plaintiff's injuries;  or (3) the proximate cause of the plaintiff's injuries was her own intervening criminal act;  and, based on any of the foregoing, the defendant is entitled to judgment as a matter of law.   In support of her motion, the defendant filed a memorandum of law, her own affidavit and excerpts from a certified transcript of the plaintiff's August 21, 2009 deposition.¹  On February 7, 2012, the plaintiff filed a memorandum in opposition.   The defendant then filed a reply on February 24, 2012, to which an affidavit of her son, Tyler Wilson, was attached.

DISCUSSION

“[M]otion[s] for summary judgment [are] designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”   Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof 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.”  (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007).  “[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).

“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 a judgment as a matter 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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The evidence submitted by the defendant in this proceeding, which is unopposed by the plaintiff, sets forth the following facts in regard to the event that gave rise to this lawsuit.   On November 21, 2007, the defendant was the owner of 22 Alex Drive in Madison, the premises in question.  (Defendant's Affidavit, ¶ 3.)   That evening the defendant was out of town and had left her teenage children, Tyler and John, alone at home.  (Defendant's Affidavit, ¶¶ 4–5;  Tyler Wilson's Affidavit, ¶¶ 3–4.)   The defendant, prior to leaving, had instructed her children not to have any guests at the house while she was away.  (Defendant's Affidavit, ¶ 6;  Tyler Wilson's Affidavit, ¶¶ 6–7.)   Electing not to heed his mother's instruction, Tyler threw a party.  (Plaintiff Deposition Transcript, pp. 41–42;  Tyler Wilson's Affidavit, ¶ 8.)   Alcohol was served and consumed at this party.  (Plaintiff's Deposition Transcript, p. 42.)   Underage minors were in attendance.  (Plaintiff's Deposition Transcript, p. 46.)   Among the attendees was the plaintiff, who arrived at the premises around 8:30 p.m. (Plaintiff's Deposition Transcript, p. 41.)   The plaintiff and Tyler were schoolmates who had a “friendly” but not a close relationship.   (Plaintiff's Deposition Transcript, pp. 18–19;  Tyler Wilson's Affidavit, ¶ 10.)   While at the party, the plaintiff socialized and consumed alcohol.   (Plaintiff's Deposition Transcript, pp. 44–45.)   Between 9:30 p.m. and 10:00 p.m., the plaintiff was on the deck drinking a beer and talking to a friend when she heard people from inside the house say that the police were on the premises.  (Plaintiff's Deposition Transcript, pp. 41, 44–45.)   Although the plaintiff subsequently heard police officers ordering people not to run, the plaintiff either ran or “walk[ed] fast” toward a poorly-lit wooded area behind the house along with “a lot” of other partygoers.  (Plaintiff's Deposition Transcript, pp. 43–49, 72.)   The plaintiff headed towards the woods because she knew that there were houses on the other side.  (Plaintiff Deposition Transcript, p. 47.)   As described by the plaintiff:  “I was running;  and then as soon as I went to enter the woods I tripped over a log, and I landed on the piece that went into my leg.”  (Plaintiff's Deposition Transcript, p. 50.)   The object that allegedly injured the plaintiff's leg was located on the defendant's property.  (Defendant's Affidavit, ¶ 11.)   Additional facts will be set forth as necessary.

I

The defendant first argues that she is entitled to summary judgment because the plaintiff entered her property without her consent or knowledge and, therefore, the plaintiff was a trespasser to whom the defendant is not liable for negligence.   The plaintiff denies that she was a trespasser.   The plaintiff claims that Tyler was acting as the defendant's “agent in effect” when he invited guests over and, moreover, it was expected that he would disregard the defendant's prohibition against guests because “it is the way teenagers all too often behave ․”

“In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail.”  LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).  “Contained within the first element, duty, there are two distinct considerations ․ First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty.”  (Internal quotation marks omitted.)  Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002).

Our Supreme Court has routinely expressed that “the test for the existence of a legal duty 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 ․ The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.”  (Citations omitted;  internal quotation marks omitted.)  Mendillo v. Board of Education, 246 Conn. 456, 483–84, 717 A.2d 1177 (1998).   Notwithstanding this general test for duty, Connecticut's premises liability law has long provided that “[t]he status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property.”   Salaman v. Waterbury, 246 Conn. 298, 304–05, 717 A.2d 161 (1998);  see Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 330–31, 612 A.2d 1197 (1992) (Connecticut “continue[s] to adhere to the proposition that the defendant's duty is based on the entry status of the particular person in question”).  “Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact.”  Roberts v. Rosenblatt, 146 Conn. 110, 112, 148 A.2d 142 (1959);  Morin v. Bell Court Condominium Association, 25 Conn.App. 112–15, 593 A.2d 147 (1991), aff'd 223 Conn. 323, 612 A.2d 1197 (1992).  “Where, however, the facts essential to the determination of plaintiff's status are not in dispute, a legal question is presented.”  Morin v. Bell Court Condominium Association, supra, 25 Conn.App. 115.

“In general, there is an ascending duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee.”  (Internal quotation marks omitted.)  Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006).   A trespasser “is one who enters upon land without the consent of the possessor to do so.”   Shaprio v. Hillside Village Condominium Assn., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274597 (March 7, 2003, Wiese, J.) (34 Conn. L. Rptr. 262, 264);  see also 2 Restatement (Second), Torts § 329 (1965).²  “One in possession of property ordinarily owes no duty to trespassers, either infant or adult, to keep the property in a reasonably safe condition for their use, since he may properly assume that they will not be there.”  Greene v. DiFazio, 148 Conn. 419, 422, 171 A.2d 411 (1961).   An intermediate duty is owed by a possessor of land to a licensee, “a person who is privileged to enter to remain upon land by virtue of the possessor's consent ․ The duty that a landowner owes to a licensee does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he [or she] finds them ․ If the licensor actually or constructively knows of the licensee's presence on the premises, however, the licensor must use reasonable care both to refrain from actively subjecting him [or her] to danger and to warn him [or her] of dangerous conditions which the possessor knows of but which he [or she] cannot reasonably assume that the licensee knows of or by reasonable use of his [or her] faculties would observe.”  (Citation omitted;  internal quotation marks omitted.)  Salaman v. Waterbury, supra, 246 Conn. 305.

A possessor of land owes the highest duty to an invitee.  “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.”  (Citations omitted;  internal quotation marks omitted.)  McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 294, 791 A.2d 602 (2002), aff'd, 263 Conn. 378, 819 A.2d 795 (2003).   Connecticut recognizes three distinct types of invitee:  “Invitees fall into certain general categories.   A public invitee ‘is a person who is invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public.’   Restatement (Second), 2 Torts § 332.   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 land.’   Restatement (Second), 2 Torts § 332.  Section 52–557a of the General Statutes, which provides that ‘[t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee,’ in effect, recognizes a third kind of invitee, namely, the social invitee.”   Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971).   While at common law social guests were generally considered licensees;  see 2 Restatement (Second), supra, § 330, comment (h);  “[t]he language of § 52–557a indicates rather that the legislature intended to require a landowner to exercise the same standard of care toward every person whom he ‘invited’ onto his premises, whether the owner extended such an invitation for business or for pleasure.”  Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991).

The plaintiff alleges that she was on the defendant's property “as an invitee at a party, being hosted by [the] defendant and her family” and that the defendant “failed to remove the dangerous condition” at issue.  (Complaint, ¶¶ 2, 6.) Reading the revised complaint “broadly and realistically” and “in such a way as to give effect to the pleading with reference to the general theory [on] which it proceeded”;  (internal quotation marks omitted) DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 140, 998 A.2d 730 (2010);  the plaintiff's allegation carries the necessary implication that she was a social invitee who was on the defendant's premises for the defendant's pleasure and who, therefore, was owed the highest standard of care.   See Doublewal Corp. v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985) (“[t]he proposition that the pleadings frame the issues before a trial court is well established in our case law”).   Contending that the plaintiff was, in contrast, a trespasser who was on the defendant's premises without the defendant's knowledge or consent, the defendant submits her affidavit, wherein she attests that:  (1) she does not know the plaintiff and has never invited the plaintiff to her house;  (2) she was out of town on the night of the party;  (3) she had forbidden her children to invite guests to the house while she was away;  and (4) she had no knowledge that they had nonetheless planned to do so.   (Defendant's Affidavit, ¶¶ 4–9.)   The defendant also relies on the affidavit of her son, Tyler, who testifies that (1) his father and the defendant are divorced and his father did not reside at 22 Alex Drive on the evening in question;  (2) prior to leaving town, the defendant specifically instructed him to not invite any guests to the house while she was away;  and (3) although he disregarded the defendant's instruction by “invit[ing] friends over,” he did not invite the plaintiff to the party and, in fact, he “did not know [the plaintiff] more than in passing and had never socialized with her outside of school.”  (Tyler Wilson's Affidavit, ¶¶ 3–10.)   Consistent with these facts, the plaintiff testified that she has never met the defendant and had never been to her house prior to the night of the party.  (Plaintiff's Deposition Transcript, p. 19.)   The plaintiff testified, however, that while Tyler did not expressly say to her that she was invited to the party, she nevertheless believed that she had been invited because her friend, “Sara,” who was also a friend of Tyler, told the plaintiff during a football game prior to the party that “[they] were invited over to his house.”  (Plaintiff's Deposition Transcript, pp. 31–32.)

The foregoing evidence establishes that, on the evening in question, the defendant had no desire to receive the plaintiff as a guest at her home and Tyler did not directly invite the plaintiff to the party.   These facts, however, do not conclusively establish the plaintiff's entry status.   The defendant's own evidence reveals that the plaintiff and Tyler were acquaintances from school who had friends in common, that the plaintiff was at Tyler's party for a prolonged period of time and that she actively participated in various social aspects of the party.   These facts suggest that Tyler had invited the plaintiff to the party even if he did not directly inform her of an invitation.   Furthermore, the salient inquiry here is whether the defendant had invited the plaintiff.   In this vein, the defendant's subjective wishes are irrelevant.  “In determining whether a particular person is an invitee, the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor.   It is immaterial that the person is one whom the possessor is not willing to receive as an invitee if the possessor's words or other conduct are understood, and would be understood by a reasonable man, as indicating the possessor's willingness.   The nature of the use to which the possessor puts his land is often sufficient to express to the reasonable understanding of the public, or classes or members of it, a willingness or unwillingness to receive them.”  (Emphasis added.)   2 Restatement (Second), supra, § 332, comment (c).  “An invitation may be implied from dedication, customary use, or enticement, allurement, or inducement to enter, or manifested by an arrangement of the premises or the conduct of the owner or occupant.”   62 Am.Jur.2d, Premises Liability § 94 (2005).   Consistent with these principles, our Supreme Court has stated that “[t]o constitute [the plaintiff] an invitee, it must appear that she was expressly or impliedly invited to use the defendant's premises ․ [I]n determining whether there was an implied invitation the question is what could ․ [be] reasonably conclude[d] from the defendant's conduct of its premises.” ³  Dym v. Merit Oil Corp., 130 Conn. 585, 588, 36 A.2d 276 (1944);  see also Guilford v. Yale University, 128 Conn. 449, 453–54, 23 A.2d 917 (1942);  Skelly v. Pleasure Beach Park Corp., 115 Conn. 92, 97, 160 A. 309 (1932).

Several aspects of the plaintiff's deposition testimony cast doubt on whether she could have reasonably concluded, based on the defendant's conduct, that the defendant had invited her to the party.   The plaintiff has never met the defendant and had never been to her house prior to the incident in question.   (Plaintiff's Deposition Transcript, p. 19.)   Before going to the defendant's house that evening, the plaintiff had received no information as to whether the defendant knew about the party.  (Plaintiff's Deposition Transcript, p. 32.)   The plaintiff attended the party because she was informed by a friend that Tyler had invited them over.  (Plaintiff's Deposition Transcript, pp. 31–32.)   While at the defendant's home, the plaintiff did not see any adults at any time.  (Plaintiff's Deposition Transcript, p. 41.)   The plaintiff did not ask where the adults were and did not hear any information about why there were no adults present.  (Plaintiff's Deposition Transcript, p. 41.)   The plaintiff understood that the party was “illegal” because underage people were drinking alcohol.  (Plaintiff's Deposition Transcript, p. 46.)   Furthermore, the plaintiff responded to the arrival of the police by attempting to escape into the woods in order to “get away from the cops.”  (Plaintiff's Deposition Transcript, pp. 46–47, 102.)

Viewing the evidence in the light most favorable to the plaintiff, however, the defendant's evidence nevertheless falls short of her heavy summary judgment burden.   The plaintiff's deposition included testimony that Tyler had hosted many parties at the defendant's residence in the past and that the defendant had approved of them.  (Plaintiff's Deposition Transcript, p. 44.)   The defendant has not submitted any evidence shedding light on whether similar parties involving teenagers had been hosted at her home, whether the defendant acquiesced to or even facilitated them, whether those parties involved alcohol and occurred with any regularity or notoriety within the community such that the plaintiff could have reasonably believed that she had been invited by the defendant in this case.   Moreover, there is a dearth of factual detail in the evidence regarding the party itself and what the plaintiff experienced there.   These factors bear on the plaintiff's status because an entrant's status can change even while he or she is on the premises.   See Byers v. Radiant Group, LLC, 966 So.2d 506, 509 (“[t]he status of a visitor to land possessed by another may change from one of the three categories to another”);  see also Rider v. McCamment, 938 N.E.2d 262, 268 (Ind.App.2010) (stating same principle);  Worthy v. Ivy Community Center, Inc., 198 N.C.App. 513, 518, 679 S.E.2d 885 (same), cert. denied, 363 N.C. 748, 689 S.E.2d 874 (2009).   In view of the paucity of factual detail in the defendant's evidence, she has not demonstrated “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.)  Zielinski v. Kotsoris, supra, 279 Conn. 318.   Because genuine issues remain as to whether the defendant impliedly invited the plaintiff to the party, summary judgment is denied with respect to the claim that the plaintiff was a trespasser on the defendant's premises.

II

The defendant next argues that even if the plaintiff was an invitee and not a trespasser, summary judgment should still be granted because the defendant had neither actual nor constructive notice of the object that allegedly caused the plaintiff's injuries.   The plaintiff responds that the “sharp object” on which she fell “clearly could be seen” and it should have been evident to the defendant if in fact she was unaware of it.   The plaintiff asserts in her memorandum in opposition that she has attached photographs substantiating her claims, however, no such photographs were actually appended.⁴

“A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe.”  Morin v. Bell Court Condominium Assn., supra, 223 Conn. 327.   Our Supreme Court has defined the legal standard to be applied to premises liability claims brought by business invitees, which, in accordance with § 52–557a, applies with equal force to claims brought by social invitees.  “Typically, [for [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice ․ [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ․ In the absence of allegations and proof of any facts that would give rise to an enhanced duty ․ [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.”  (Internal quotation marks omitted.)  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007);  see also Kurti v. Becker, 54 Conn.App. 335, 733 A.2d 916 (stating that possessor of land is chargeable with constructive notice of defects when dealing with social invitees), cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).

The defendant attests that “prior to the events giving rise to this lawsuit” she was not aware of the existence of the object that allegedly harmed the plaintiff.  (Defendant's Affidavit, ¶ 10.)   Having shown that she did not have actual notice of the dangerous condition, the defendant must establish that she also did not have constructive notice of it.  “The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it.”  (Internal quotation marks omitted.)  Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007).

The defendant does not offer any proof as to how long the object was on her land and does not claim that it was of such an ephemeral nature that she could not be charged with notice of it.   The defendant claims, rather, that regardless of how long the condition was actually in existence “no reasonable jury could conclude that the defendant should have discovered the object after conducting a reasonable inspection of the premises.”   To support her contention, the defendant testifies that (1) the object is located in a wooded portion of her property that serves as a buffer between properties;  (2) the wooded area is outside of the area that the defendant maintains and mows, and it is neither used nor intended to be used as a walkway or access way;  (3) the defendant purchased the property less than one year before the plaintiff's injury and she never had reason to inspect or access this wooded area;  and (4) when the defendant inspected the object after the plaintiff's injury, she observed that “[i]t had a large boulder sitting on most of it and the remainder was obscured by leaves that had fallen in the wooded area over time.   The object was not readily visible.”  (Defendant's Affidavit, ¶¶ 11–14.)   Tyler also attests that he did not know about the object and never saw it when he worked on the lawn or performed home maintenance activities.  (Tyler Wilson's Affidavit, ¶ 13.)

The foregoing evidence, when viewed in the light most favorable to the plaintiff, does not demonstrate that the defendant, in exercising reasonable care to inspect her premises and keep it safe for an invitee, should not have discovered the object.   The plaintiff's deposition testimony provides a conflicting account of the location of the object.   The plaintiff testified that although she headed towards the woods when the police arrived, she “didn't really make it into the woods” and “got hurt right at the start of it.”   (Plaintiff's Deposition Testimony, p. 50.)   This account suggests that the object is actually located in the nonwooded portion of the defendant's property.   The defendant does not address in her evidence whether this area is one where the plaintiff, as an invitee at Tyler's party, might be expected to venture.   In addition, the defendant's statement in her affidavit that the object was “obscured by leaves that had fallen” over time suggests that the object would be visible in the absence of foliage, and begs the question of why the leaves were not cleared and whether, before the leaves had gathered, it should have been visible to the defendant.   Although photographic evidence of the object or testimony regarding its length, shape, color, material and how, if at all, it was attached to the land, would be highly probative as to constructive notice, the defendant does not provide any of the foregoing.   Finally, the defendant's vague assertion that she purchased the property “less than a year” before the incident does not establish that she lacked sufficient time to discover the object in the course of a reasonable inspection.   Therefore, the evidence does not provide a basis for a fair and reasonable person to conclude only one way as to whether the defendant should have discovered the object that allegedly harmed the plaintiff.

Our Supreme Court has observed that “[s]ummary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation.”  (Internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975);  see also Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972) (“[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial”).   This principle is no less true in the present case and, consequently, the defendant's motion is denied with respect to the claim that she lacked constructive notice of the dangerous condition in contention.

III

The defendant finally argues that even if she was aware of the existence of the object that allegedly injured the plaintiff, the proximate cause of the injuries was not the breach of any duty owed to the plaintiff by the defendant.   Rather, relying on the principle of law expounded in § 442B of the Restatement (Second) of Torts,⁵ the defendant asserts that the plaintiff's own intervening criminal act, namely, her attempt to evade the police, was a superseding and unforeseeable cause of harm that completely exonerates the defendant from liability.   Therefore, claims the defendant, summary judgment should be granted on this ground, as well.

“Legal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.”  Kowal v. Hofner, 181 Conn. 355, 359, 436 A.2d 1 (1980).  “In order to prevail on a negligence claim, a plaintiff must establish that the defendant's conduct ‘legally caused’ the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury.”  Craig v. Driscoll, 262 Conn. 312, 330, 813 A.2d 1003 (2003).

“The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct ․ The test of proximate cause is whether the defendant's conduct is a ‘substantial factor’ in producing the plaintiff's injury.   The substantial factor test asks, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence ․ This requirement tempers the expansive view of causation [in fact] ․ by the pragmatic ․ shaping [of] rules which are feasible to administer, and yield a workable degree of certainty ․ Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscured consequences of inconsequential causes ․

“The scope of the risk analysis of proximate cause similarly applies where ․ the risk of harm created by the defendant's negligence allegedly extends to an intervening criminal act by a third party ․ [We have] consistently adhered to the standard of 2 Restatement (Second), Torts § 442B (1965) that a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct ․ The reason [for the general rule precluding liability where the intervening act is intentional or criminal] is that in such a case the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him.”   (Citations omitted;  internal quotation marks omitted.)  Id., 331–33.

“Although the issue of causation generally is a question for the trier of fact ․ the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation.”  (Internal quotation marks omitted.)  Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).

The defendant clearly misapplies § 442B. That section absolves a negligent defendant from liability where the harm is intentionally caused by an intervening third person and is not within the scope of the risk created by the defendant's conduct.   The harm allegedly sustained by the plaintiff in this case was neither intentional nor caused by a third person.   Even overlooking this misapplication of law and interpreting the defendant's argument as stating, in essence, that the plaintiff's conduct was the sole proximate cause of her injuries, the defendant would still not be entitled to summary judgment.   If the plaintiff proved at trial that she was indeed an invitee of the defendant at a house party where minors were served alcohol, and further, that the defendant had constructive notice of a dangerous condition on a portion of her property where party invitees might be expected to venture, a fair and reasonable juror would be entitled to conclude that the defendant's negligence was a “substantial factor” in producing the plaintiff's injuries since, under these circumstances, that juror could conclude that the injuries were “of the same general nature as the foreseeable risk created by the defendant's negligence.”   Although the plaintiff, admittedly, was trying to evade the police at the time she was injured, any negligence on her part does not legally bar her claims, although it may diminish her recovery in accordance with Connecticut's comparative negligence scheme.   See General Statutes § 52–572o.⁶  Therefore, summary judgment is denied with respect to the claim that the plaintiff's injuries were not proximately caused by the defendant's negligence.

CONCLUSION

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

Wilson, J.

FOOTNOTES

FN1. Our Appellate Court has noted that “the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment ․ Since our decision in Esposito [v. Wethered, 4 Conn.App. 641, 496 A.2d 222 (1985) ], we have not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment.”  Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n.1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997)..  FN1. Our Appellate Court has noted that “the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment ․ Since our decision in Esposito [v. Wethered, 4 Conn.App. 641, 496 A.2d 222 (1985) ], we have not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment.”  Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n.1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997).

FN2. Section 329 of the Restatement (Second) of Torts provides:  “A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.”.  FN2. Section 329 of the Restatement (Second) of Torts provides:  “A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.”

FN3. Although in Connecticut the implied invitation doctrine has generally been applied in cases involving business or public invitees, Justice O'Sullivan aptly wrote that “[r]egardless of the purpose which may prompt the owner of realty, he should be required to exercise reasonable care towards those who have come upon his property by virtue of either his express or implied invitation.   This rule should apply to all so invited, whether they be milkmen, grocers, or social guests.   The rule is sound and conforms with common sense.”  (Emphases added.)  Laube v. Stevenson, 137 Conn. 469, 477–78, 78 A.2d 693 (1951) (O'Sullivan, J., dissenting), majority opinion superseded by § 52–557a.   Justice O'Sullivan's dissent contributed to the enactment of the superseding statute, § 52–557a, which elevated social guests to the status of business invitees.   Furstein v. Hill, supra, 218 Conn. 621.   In this court's view, his pronouncement is sensible and consistent with the express purpose of that statute.   See id., 622..  FN3. Although in Connecticut the implied invitation doctrine has generally been applied in cases involving business or public invitees, Justice O'Sullivan aptly wrote that “[r]egardless of the purpose which may prompt the owner of realty, he should be required to exercise reasonable care towards those who have come upon his property by virtue of either his express or implied invitation.   This rule should apply to all so invited, whether they be milkmen, grocers, or social guests.   The rule is sound and conforms with common sense.”  (Emphases added.)  Laube v. Stevenson, 137 Conn. 469, 477–78, 78 A.2d 693 (1951) (O'Sullivan, J., dissenting), majority opinion superseded by § 52–557a.   Justice O'Sullivan's dissent contributed to the enactment of the superseding statute, § 52–557a, which elevated social guests to the status of business invitees.   Furstein v. Hill, supra, 218 Conn. 621.   In this court's view, his pronouncement is sensible and consistent with the express purpose of that statute.   See id., 622.

FN4. During short calendar, both parties gave to the court copies of photographs depicting the area of the defendant's premises where the plaintiff allegedly fell.   These copies are not evidence.   They were never filed as exhibits.   Rather, they were informally handed to the court by the parties, apparently to provide a frame of reference regarding the plaintiff's action.   Consequently, these documents will play no part in the court's adjudication of the present motion..  FN4. During short calendar, both parties gave to the court copies of photographs depicting the area of the defendant's premises where the plaintiff allegedly fell.   These copies are not evidence.   They were never filed as exhibits.   Rather, they were informally handed to the court by the parties, apparently to provide a frame of reference regarding the plaintiff's action.   Consequently, these documents will play no part in the court's adjudication of the present motion.

FN5. Section 442B of the Restatement (Second) of Torts provides:  “Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.”.  FN5. Section 442B of the Restatement (Second) of Torts provides:  “Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.”

FN6. Section 52–572o, Connecticut's comparative negligence statute, provides in subsection (a), in relevant part, that “the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.”.  FN6. Section 52–572o, Connecticut's comparative negligence statute, provides in subsection (a), in relevant part, that “the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.”

Wilson, Robin L., J.