Town of Portland v. Summer Meadows Condominium Association et al. (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT WILLIAM PARDO

The defendant, William Pardo, has moved for summary judgment on the Seventh Count of the Third Amended Complaint, dated October 10, 2012 and the Ninth Count of the Revised Amended Complaint of the intervening plaintiff, Todd Ghent, dated February 18, 2013.

Facts

On October 10, 2012, the plaintiff, the town of Portland, filed a third amended complaint with seven counts, and the last count was against the apportionment defendant, William Pardo.   Then, on February 19, 2013, the intervening plaintiff, Todd Ghent, filed a third intervening complaint with nine counts, and the last count was against Pardo.   The two complaints are very similar, and allege the following shared facts.

On January 29, 2011, while acting in their capacity as members of the volunteer fire department for the town of Portland, the plaintiff's employees, including the intervening plaintiff, responded to an emergency call for a propane gas leak at a condominium unit at the defendant, Summer Meadow Condominium.   A gas detection meter alarm was triggered as the plaintiff's employees approached the condominium unit.   Subsequently, there was a major explosion near the propane tank, and the plaintiff's employees, including the intervening plaintiff, suffered serious injuries and damages.

The two complaints also allege that the injuries to the plaintiff's employees, including the intervening plaintiff, were caused by the negligence of Pardo.   In particular, Pardo failed to exhibit any visible warning of the propane tank's location, and he failed to provide notice of the propane tank's location when he should have known that the tank's existence and location are easily obscured by snow or other conditions.

On April 1, 2013, Pardo filed a motion for summary judgment as to the claims against him in the plaintiff's third amended complaint and in the intervening plaintiff's third amended complaint.   In addition, on April 9, 2013, Pardo filed an “Affidavit of William Pardo” in support of his motion.   On April 12, 2013, the intervening plaintiff filed an objection to the motion for summary judgment, along with a supporting memorandum.   On April 17, 2013, the intervening plaintiff filed a supplemental memorandum in support of his objection to the motion for summary judgment.   On that same day, the plaintiff, the town of Portland, filed a motion to join in and adopt the intervening plaintiff's objection to Pardo's motion.   On April 29, 2013, the court (Aurigemma, J.) granted the town of Portland's motion.   The motion for summary judgment was heard on short calendar on April 22, 2013.

Discussion of the Law and Ruling

“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 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 ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

Pardo moves for summary judgment on the grounds that (1) the firefighter's rule effectively precludes the claims because the only duty of care that Pardo owed to the plaintiff's employees, including the intervening plaintiff, is that of a licensee, which is limited to the duty not to injure him willfully or wantonly, and (2) fundamental concepts of justice prohibit a firefighter from complaining of negligence in the creation of the very occasion for his emergency response to the scene of the accident.   In regard to the first ground, Pardo explains that the plaintiff and intervening plaintiff cannot prevail on their negligence claim unless they show that there was a breach of duty.   Pardo then contends that a firefighter entering a property in response to an emergency call is afforded only the status of a licensee, and hence a lower standard of care applies.   More specifically, a possessor of land is subject to liability for harm caused to licensees only if the licensees do not know or have reason to know of the condition and the risk involved.   Pardo argues that not only did the plaintiff's employees and the intervening plaintiff know about the propane leak and the dangers involved, but it was also the very reason that they were called to the scene.

In the objection, the intervening plaintiff does not deny that the firefighter's rule, if applicable, would preclude the intervening plaintiff from pursuing his claim.   Instead, the intervening plaintiff argues that there is a genuine issue of material fact as to whether the firefighter's rule applies.   Specifically, the intervening plaintiff contends that there is an exception to the firefighter's rule where a public officer is injured by a defective condition on a portion of land that is open to the public.   The intervening plaintiff emphasizes that his complaint asserts that he was injured in an area open and accessible to the public.   Hence, the intervening plaintiff argues that whether the firefighter's rule applies is a genuine issue of material fact that is dependent on whether the area where the intervening plaintiff was injured was open and accessible to the public.

The intervening plaintiff also submitted a supplemental objection, in which he again argues that there is a genuine issue of material fact as to whether the firefighter's rule applies.   Specifically, the intervening plaintiff argues that the claim against Pardo is not based on premises liability, as there is no defect in the property.   The intervening plaintiff contends that the allegations of negligence are instead based on the failure to warn of the location of the propane tank.   In other words, the intervening plaintiff argues that the negligence of Pardo is based on a personal failure to act, rather than a defect in the premises.   The intervening plaintiff concludes that the firefighter's rule does not apply outside the premises liability context.

“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.)  LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002).  “In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee.”  Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).  “The common-law ‘firefighter's rule’ provides, in general terms, 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 by the property owner that is less than that owed to an ordinary invitee ․ Thus, 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.”  (Citation omitted;  internal quotation marks omitted.)   Levandoski v. Cone, 267 Conn. 651, 653–54, 841 A.2d 208 (2004).

“The firefighter's rule has well developed roots in the common law.   Although the rule had its origins in a social system in which the landowner was sovereign within its own boundaries and owed a licensee only the duty not to injure him wilfully or wantonly ․ the jurisdictions that have applied the rule in recent years have offered more cogent reason to justify its continued viability.”  (Citation omitted;  internal quotation marks omitted.)   Furstein v. Hill, 218 Conn. 610, 616, 590 A.2d 939 (1991).  “The most compelling argument for the continuing validity of the rule is the recognition that firefighters and police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances ․ Such public officers enter the land regardless of the owner's consent;  indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them ․ Recognizing that only invitees may rely on an implied representation of safety, courts have considered it unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict.”  (Citations omitted.)  Id., 616–17.

“A majority of the trial courts that have addressed this rule have held that the rule precludes liability only where the firefighter or police officer's injury arises from the officer's official presence on private property ․ No Connecticut Appellate Court has extended the rule to a situation ․ in which the injury to the safety officer occurred on public property.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)   Reynolds v. Waters Construction Co., Superior Court, judicial district of New Britain, Docket No. 495698 (June 19, 2001, Shapiro, J.).   Moreover, in Furstein v. Hill, 218 Conn. 610, 617 n.1, 590 A.2d 939 (1991), the Supreme Court stated:  “[A]n exception to the rule may exist when a police officer is injured by a defective condition on a portion of the land held open to the public at a time when the public might reasonably be expected to be present, and courts have indeed recognized such an exception.   This exception is noted in the Restatement (Second) of Torts, § 345(2), which provides that ‘[t]he liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee.’ “

In Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 334–35, the court further elaborated on the meaning of “land held open to the public,” and held:  “Although there is a paucity of case law on this specific issue, we approve of the result reached in Flowers v. Rock Creek Terrace, 308 Md. 432, 437–38, 520 A.2d 361 (1987), which specifically rejected a plaintiff firefighter's argument that he should be considered an implied invitee because he was injured in an area open to the public, i.e., an apartment building's common area.   The fact that common areas of a condominium complex are open to the various condominium owners does not establish that they are, as a matter of law, open to the public.   In situations in which the premises have been considered open to the public, there is generally some sort of public function or traditional business purpose being served.   Public or business functions are conspicuously absent in a private residence such as a condominium building.”

In the present case, Pardo has met his initial burden of showing that there is no genuine issue of material fact that the firefighter's rule applies.   Specifically, there is no genuine issue of material fact that the intervening plaintiff was injured in the exercise of his duties while on Pardo's private property.   It is an undisputed fact that the intervening plaintiff was acting in the scope of his duties as firefighter at the time of the propane explosion that resulted in his alleged injuries.   Pardo has also established that the alleged accident occurred on private, rather than public property.   In particular, the affidavit of William Pardo states that the accident at issue occurred at 194/196 Summer Meadows in Portland, Connecticut, and that Pardo was the owner of the 196 condominium unit.   The affidavit also states that Pardo, as the owner of one of the condominium units and as a member of the association, also owned a proportionate share of the common areas in the complex.

The burden now shifts onto the intervening plaintiff to submit evidence establishing the existence of a genuine issue of material fact as to whether the public land exception applies.   Yet, the intervening plaintiff has failed to attach any exhibits, or provide any other kind of admissible documents or evidence.   Instead, the intervening plaintiff essentially argues that a genuine issue of material facts is raised because the ninth count of the third intervening complaint asserts that the intervening plaintiff was injured in an area that was open and accessible to the public.   Firstly, and most importantly for the purpose of this motion for summary judgment, the statement is not supported by any admissible evidence.   Secondly, the statement is conclusory, and is not even bolstered by any factual allegations.

Moreover, the intervening plaintiff's argument is also not convincing to the extent that the intervening plaintiff implicitly relies on Pardo's affidavit to argue that the explosion occurred in a shared area of the condominium complex, which is open to the public.   As mentioned above, the Supreme Court in Morin has ruled that the fact that common areas of a condominium complex are open to the various condominium owners does not establish that they are open to the public.   The court concluded that there must be a public function or traditional business purpose in order for premises to be considered open to the public, and that public or business functions are conspicuously absent in a private residence such as a condominium building.

In the present case, as mentioned above, Pardo has met his initial burden by establishing that the alleged explosion took place at a condominium complex, that Pardo is the sole owner of the 196 unit, and that Pardo shares ownership of the common areas with the other members in the association.   The intervening plaintiff, however, has not met his burden by providing evidence to support the contention that the area at issue was serving a traditional public or business function.   As a result, there is no genuine issue of material fact that the condominium was not open to the public, because it is a private residence that does not serve a public function or traditional business purpose.   In the alternative, the intervening plaintiff argues that the firefighter rule applies only to premises liability claims and that the claim against Pardo is based on ordinary negligence.   More specifically, the intervening plaintiff argues that the allegations are not based on a defect on Pardo's property, but rather on the failure to warn as to the location of the propane tank.

The intervening plaintiff correctly argues that Connecticut does not apply the firefighter's rule outside of the premises liability context.   See Levandoski v. Cone, supra, 267 Conn. 661 (“the [firefighter's] rule should not be extended to a nonpremises liability case ․”);  see also Ponteau v. Garrett, Superior Court, judicial district of New Haven, Docket No. CV 12 6029737 (January 3, 2013, Wilson, J.) (55 Conn. L. Rptr. 280, 282 n.3) (although earlier Superior Court decisions recognized a split of authority on the issue, the “judges of the Superior Court who have applied the firefighter's rule after Levandoski ․ have acknowledged that the rule's applicability is limited to premises liability claims”).   Nevertheless, the question remains as to whether the counts at issue sound in ordinary negligence or premises liability.

When “the plaintiff's allegations stem from an injury caused by a dangerous condition on the premises ․ liability is dependent on possession and control of the dangerous condition” and the claim is therefore “for negligence under a theory of premises liability.”   Brandle v. Waterford, Superior Court, judicial district of New London, Docket No. CV 11 6007040 (October 19, 2011, Cosgrove, J.).  “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 ․ The duty that a ․ [possessor of land] owes to a licensee, [however,] does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them ․ Additionally, as with trespassers, there is a duty to refrain from injuring a licensee intentionally, or by willful, wanton or reckless conduct.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 327–28.

In the present case, the intervening plaintiff alleges that Pardo failed to exhibit any visible warning of the propane tank's location and that he failed to provide notice of the propane tank's location when he should have known that the location could be easily obscured by snow or other conditions.   The propane tank in question was leaking gas, and injured the intervening plaintiff after a subsequent explosion.   In other words, the intervening plaintiff is essentially alleging that Pardo failed to warn of the location of a dangerous and nonobvious condition on Pardo's property that caused the intervening plaintiff's injuries.   Such an allegation of a failure to warn is consistent with a premise liability action.   Moreover, although the intervening plaintiff's allegations of negligence revolve around Pardo's failure to warn, the allegations ultimately stem from injuries caused by a dangerous condition on the premises, and the liability is dependent on Pardo's control over the premises.

In the end, even though the intervening plaintiff argues that his complaint sounds in ordinary negligence, “any allegations of duty, breach, causation and damages have become so intertwined with the references to the dangerous condition located on the premises ․ that they are indistinguishable from a [premise] liability cause of action ․” Brandle v. Waterford, supra, Superior Court, Docket No. CV 11 6007040.   Hence, these allegations fall under premises liability.   As a result, the firefighter's rule is not precluded on the basis that the allegations fall under ordinary negligence rather than premises liability.

For the forgoing reasons, the defendant Pardo has established that there are no genuine issues of material fact as to whether the firefighter rule effectively precludes the plaintiff's and the intervening plaintiff's claims against Pardo.   Pardo is entitled to summary judgment as a matter of law based on the admissible evidence and the undisputed material facts.

By the Court,

Aurigemma, J.

Aurigemma, Julia L., J.