Jennine Skyllas v. Westview Office Park Association, Inc. (2012)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

In this slip and fall case the plaintiff, Jennine Skyllas, filed a six-count complaint against the defendants, Westview Office Park Association, Inc. (Westview), The ABC Group, LLC (ABC) and CJN Landscaping and Lawn Care, LLC (CJN).  In the complaint, the plaintiff alleges that when she walked to her car that was in the parking lot, she was caused to fall to the ground by an accumulation of snow and ice.

On March 7, 2012, CJN filed this motion for summary judgment and on March 23, 2012, Westview and ABC filed motions for summary judgment, and adopted CJN's arguments which included a letter from a meteorologist.

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The defendants argue that they did not owe a duty to the plaintiff to remove the snow and ice because a storm was in progress at the time.   To support this claim, the defendants offer the plaintiff's deposition in which the plaintiff admitted that it was snowing when she arrived on the premises and when she left.   The defendants also rely on the letter from the meteorologist, which states that there was precipitation throughout January 28, 2009, the day of the fall, for a total snowfall of three and a half inches.

The plaintiff counters that the complaint did not allege that her fall was due solely to the precipitation that took place on January 28th and there exists an issue of material fact as to whether her fall was due to accumulation on January 28th or prior accumulation.   The plaintiff relies on the meteorologist letter submitted by the defendants that also states that the snow depth was approximately five inches as of January 27th as well as a copy of the local meteorological record that shows there were measurable amounts of snowfall in the days prior to her fall.

In Kraus v. Newtown, 211 Conn. 191, 197 (2010), our Supreme Court stated:  “ ‘[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.   Our decision, however, 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.

In Berlinger v. Kudej, 120 Conn.App. 432, 991 A.2d 716 (2010), our Appellate Court reversed a trial court decision granting the defendant's motion for summary judgment holding 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 Leonard v. G & W Management, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 05 5000179 (August 28, 2007, Upson, J.), the court denied the defendant's motion for summary judgment because the defendant had not established that there were no genuine issues of material fact as to the existence of an accumulation of ice and snow from a prior storm.   Relying on Kraus v. Newton, supra, 211 Conn. 198, the court reasoned that in order to “meet its burden of proving that the ongoing storm doctrine applies so as to preclude the imposition of the duty of care, [the defendant] would have to establish that any accumulation of snow or ice was not the result of a prior storm.”   The court found that the defendant had not met this burden because the weather report provided by the defendant stated that at the end of the day preceding the plaintiff's fall six inches of snow was on the ground from a prior snowfall and other evidence suggested that the lot was usually not cleared properly after snowstorms.

In this case, the defendants have not established the absence of any genuine issues of material fact as to the existence of an accumulation of ice and snow from a prior storm.   In fact, the evidence suggests there was prior accumulation.   Since there is a genuine issue of material fact as to whether the plaintiff's fall was due to accumulation on January 28th or prior accumulation, defendant's motion for summary judgment is denied.

Wagner, JTR

Wagner, Jerry, J.T.R.