Scott Tesla v. LLC (2013)

MEMORANDUM OF DECISION

The plaintiff, Scott Tesla, has brought an action against the defendant, Norton Brothers Fruit Farm, LLC, for personal injuries allegedly sustained when he slipped and fell on the defendant's farm.   The plaintiff alleges that he was on the farm for the purpose of picking apples to be purchased from the defendant.

The defendant moved for summary judgment claiming that it is immune from suit by the Connecticut Recreational Land Use Act, General Statutes § 52–557f et seq., because the defendant did not charge a fee for anyone coming onto the farm.   The plaintiff filed an objection claiming that the act does not grant immunity where the land is offered for “other commercial service.”   The plaintiff also claims that he was owed a higher duty of care as a business invitee per Cruz v. Drezek, 175 Conn. 230, 397 A.2d 1335 (1978), and that the defendant owed a higher duty of care under the “mode of operation” rule per Kelly v. Stop & Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007).

The matter was heard at short calendar on October 21, 2013.   In response to a question from the court, defense counsel, with commendable candor, admitted that the farm is run for profit.

“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).  “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).

General Statute § 52–557g(a) provides:  “Except as provided in section 52–557h, an owner of land who makes all or part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.”  (Emphasis added.)

It is clear to this court from the plain language of the statute that in offering apples for sale, albeit one picked by the plaintiff, the defendant is engaged in a “commercial service.”   See Thompson v. St. Mary's Immaculate Conception Church, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV–95–0049384–S (January 6, 1998, Corradino, J.) (21 Conn. L. Rptr. 168).   Aside from being a more bucolic setting, this court sees no difference between the defendant's commercial farm than an ordinary commercial store that does not charge a fee to enter but does expect the customer to pay for any items they want to take home with them.   Therefore, the defendant is not entitled to summary judgment on the basis of § 52–557g.

Moreover, inasmuch as the affidavit of the plaintiff, which accompanies the objection, states that he was there for the purpose of purchasing the apples, there is a question of fact as to whether his use was not a recreational purpose, but a commercial one.   Therefore, there remain questions of material fact to the status of the plaintiff in entering onto the defendant's property.   Therefore the motion for summary judgment is denied.

BY THE COURT

Jack W. Fischer, Judge

Fischer, Jack W., J.