Oksana Popova v. Estate of Ann B. Pappalardo et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (126.00)

I. Facts

In this action seeking damages for personal injuries, the plaintiff Popova alleges that she slipped and fell on the morning of January 15, 2009 in the driveway of Pappalardo's residence in Stamford, Connecticut residence while in the process of taking Pappalardo, an elderly woman, now deceased, to a doctor's appointment.   The complaint alleges the plaintiff slipped “on ice and/or snow which had accumulated” on the driveway.

The defendant Estate and its representative have moved for summary judgment contending essentially that they had no duty to clear the driveway until the snow precipitation had stopped.   The plaintiff opposes the motion.

II. Standard of Review

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.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2009).   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 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”   Appleton v. Board of Education, supra, 254 Conn. 209.   See generally, Mott v. Wal–Mart Stores East L.P., 139 Conn.App. 618, 624–25 (2013).

III. Discussion

The moving defendants rely on the deposition testimony of the plaintiff Popova, a weather report, and the case of Kraus v. Newton, 211 Conn. 191 (1989), which held that:

In 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 plaintiffs' injury has resulted for new ice or old ice when the effects of separate storms begin to converge.

Id., 197–98 (footnote omitted).

At her deposition in response to the question “was it snowing or had it stopped” when she got up on January 15, Popova testified “still snow.”   Ex. A to Summary Judgment Motion, p. 17.   It is also contended Popova testified it was not slippery in the driveway the day before.  Id., p. 15.   In support of the motion there is submitted a weather report for January 15, 2009 prepared for defense counsel by CompuWeather stating for the area in question that 1.5 inches of snow fell from “12:50–1:15 A.M. EST through around 11:45 A.M.–12:00 EST on January 15, 2009.”   Ex. B to Summary Judgment Motion.

In opposition to the motion the plaintiff has submitted a purported affidavit which is not sworn to or dated, which states that from the time she woke up on January 15, 2009 until the time of the accident, no snow fell and that her answer at her deposition should not be misconstrued and it meant there was snow on the ground when she fell.   Popova Affidavit (Dkt. Entry 129.00). ¶¶ 7, 9–10.   In addition, Popova relies on an expert disclosure of James Bria, of CompuWeather by a co-defendant.  (Dkt. Entry No. 124.00).   Popova contends that this disclosure does not prove it was snowing continuously on January 15, 2009.

No court is eager to be faced with an affidavit of a party that seeks to change the impact of sworn deposition testimony.   However, English is not Popova's native language, and her effort to explain what her testimony meant does not ring false.   The court is also mindful that in Kraus v. Norton, supra, the Connecticut Supreme Court pointedly left the issue of when a storm ended to be one resolved by jury that had all the available facts.

The court finds there is an unresolved facts as to the weather conditions leading up to the morning of January 15, 2009 that have a material effect on whether a duty was breached by the moving defendants.

The motion for summary judgment is denied.

SO ORDERED.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.