Doris Powell v. LLC (2013)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 117)

On December 9, 2011, the plaintiff, Doris Powell, filed a one-count negligence complaint against four defendants (Ansonia Acquisitions IV, LLC, Ansonia Acquisitions I, LLC, Tarragon Development Corporation, and Tarragon Management, Inc.).   On May 30, 2013, the plaintiff revised her complaint, eliminating all defendants but Ansonia Acquisitions I, LLC (defendant).   The revised complaint alleges the following facts.   On December 21, 2009, at approximately 8:00 a.m.,¹ the plaintiff fell on the snowy, icy sidewalk adjacent to the entrance to Building 22 at the Nutmeg Woods Apartments in New London, Connecticut, injuring her left knee, left shoulder, and spine.   The area where she fell is owned, controlled and/or maintained by the defendant.   The plaintiff alleges that the defendant failed to remove, or to apply anti-slip substance to, the snow and ice and to give warning of the slippery conditions.

On June 7, 2013, the defendant moved for summary judgment arguing that Connecticut's “storm in progress” doctrine entitled the defendant to judgment as a matter of law.   The evidence in support of the defendant's motion, besides the date and time of the plaintiff's fall, consists of the plaintiff's admission in her deposition that it was snowing on December 21, 2009, at 6 a.m. when she awoke and that “light snow” was falling when she left her apartment two and a half hours later.   On July 25, 2013, the plaintiff filed a memorandum in opposition to the motion arguing that there is a genuine issue of material fact as to whether the storm in progress doctrine applies.   The evidence in opposition to the motion includes the following.   In her affidavit, dated July 25, 2013, the plaintiff testifies that there was no storm going on at the time of her fall.   The plaintiff's affidavit includes her testimony that there was a storm that had happened, and had ended, the day before the plaintiff fell.   The National Weather Service report submitted in opposition to the present motion indicates clearly (notwithstanding illegibility in certain places) that, at the Groton weather station, a snow storm began on December 19, 2009, and ended at about 1 p.m. on December 20, 2009.   The report also shows that there was no more snow in the area until December 25.   Finally, the plaintiff testified that the defendant's employee told the plaintiff that “[w]e forgot to schedule the snowplow.”

DISCUSSION

A motion for summary judgment shall be granted “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.   On a motion for summary judgment, the moving party bears the burden of showing that no genuine issues of fact exist and that that party is entitled to judgment.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 676 (2008).   Once the moving party has met its burden, to defeat a motion for summary judgment, the opposing party must present evidence showing that there is a disputed factual issue.  Id., 11.   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but simply to determine whether any such issues exist.  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

The defendant's motion is predicated upon Connecticut's storm in progress doctrine.   In Kraus v. Newton, our state Supreme Court explained the doctrine as follows.  “We believe 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 plaintiff's injury has resulted from new ice or old ice when the effects of separate storms begin to converge.”   (Footnote omitted.)  Kraus v. Newton, 211 Conn. 191, 197–98, 558 A.2d 240 (1989).   The doctrine has been consistently relied upon by our Appellate Court.   See, e.g., Umsteadt v. G.R. Realty, 123 Conn.App. 73, 1 A.3d 243 (2010);  Leon v. DeJesus, 123 Conn.App. 574, 2 A.3d 956 (2010).

The court cannot find, as a matter of law, that the storm in progress doctrine bars this suit.   First, in light of the National Weather Service report, the plaintiff's testimony that it was snowing when she awoke and that “light snow” was falling when she left her apartment would not be enough to find that the storm in progress doctrine bars her suit.   The “Resident/Visitor Report Form” attached to the plaintiff's memorandum in opposition states that the plaintiff fell at 8 a.m. on December 21, 2009.   The Weather Service report shows that snow fall in the area had stopped at around 1 p.m. on December 20 and did not begin again until approximately 2 p.m. on December 25.   Even if some light snow were falling at the time of the incident, that would not mean the storm had not ended the day before, as indicated in the Weather Service summary and testified to by the plaintiff in her affidavit.²

Second, deposition testimony can only “support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”  Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).   Here, it is only by a credibility determination and conjecture—namely crediting the plaintiff's deposition testimony that “light snow” was still falling when she claims to have slipped and speculating from this statement that a storm was and had continuously been under way—that the court could grant the present motion based on the storm in progress doctrine.   Neither credibility determinations nor conjecture are proper in ruling on the present motion.   See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 107, 639 A.2d 507 (1994).

CONCLUSION

Defendant's motion for summary judgment is denied.

Cole–Chu, J.

FOOTNOTES

FN1. The plaintiff testified in deposition that she fell at 8:30 a.m..  FN1. The plaintiff testified in deposition that she fell at 8:30 a.m.

FN2. The defendant's reply memorandum insists that the “sham affidavit” rule compels this court to disregard the plaintiff's July 25 affidavit.   Even if the court were to do so, the National Weather Service report—standing by itself—would be sufficient to present a genuine issue regarding whether the snow fall had stopped prior to the plaintiff's accident..  FN2. The defendant's reply memorandum insists that the “sham affidavit” rule compels this court to disregard the plaintiff's July 25 affidavit.   Even if the court were to do so, the National Weather Service report—standing by itself—would be sufficient to present a genuine issue regarding whether the snow fall had stopped prior to the plaintiff's accident.

Cole–Chu, Leeland J., J.