Marium Ahmed v. James W. Woodward (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 126)

FACTS

On June 13, 2012, the plaintiff, Marium Ahmed, commenced this action by service of process against James W. Woodward.   On June 19, 2012, the plaintiff served Beazley Property Management, Inc. (Beazley).  They will be referred to collectively as the defendants.   Woodward is the owner of property located at 935 West Main Street in Branford, Connecticut (the premises).   Beazley served as property manager for the premises at all relevant times.

This is a premises liability action based on a slip and fall that allegedly occurred on the premises on or about May 27, 2011.   On July 2, 2012, the plaintiff filed a two-count complaint with count one directed against Woodward and count two directed against Beazley.   The plaintiff alleges the following facts in her complaint.   On May 27, 2011, the plaintiff was lawfully upon the premises.   The defendants held the premises open to the public and, therefore, had a duty to exercise reasonable care to maintain the premises in a safe condition.   The surface of the driveway of the premises (the driveway) connecting the premises to the adjoining highway was uneven and improperly maintained.¹  When the plaintiff was walking on the driveway, she tripped, fell, and sustained injuries on its uneven surface.   The plaintiff's injuries were caused by the defendants' negligence.   The defendants were negligent in that they failed to warn of this dangerous condition, allowed this dangerous condition to persist, failed to make the premises safe, and failed generally to exercise due care in maintaining the premises and the driveway.

On May 16, 2013, the defendants filed a motion for summary judgment, together with a supporting memorandum of law and exhibits, on the ground that there is no material issue of fact regarding the defendants' ownership, possession, or control of the part of the driveway where the plaintiff fell (the locus).   The plaintiff objected to the defendants' motion on September 25, 2013, together with a supporting memorandum and exhibits, arguing that based on the record, there is an issue of material fact regarding the defendants' ownership, possession, or control of the locus.   On September 30, 2013, the defendants filed a reply to the plaintiff's objection.   The matter was heard at short calendar on September 30, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).   “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”   Practice Book § 17–45.

“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.”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “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.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ․ 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.”  (Internal quotation marks omitted.)  Gold v. East Haddam, 290 Conn. 668, 677–78, 966 A.2d 684 (2009).  “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., supra, 285 Conn. 11.  “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.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002).

The defendants argue that, based on the evidence they submitted, there is no genuine issue of material fact as to the defendants' ownership, possession, or control of the locus.   Altogether, the defendants submitted five exhibits:  excerpts of the deposition of the plaintiff;  a photograph depicting the locus and U.S. Route One;  an affidavit of Woodward, together with photographs of the premises;  an affidavit of Susan Bradford, the president and managing director of Beazley, together with the same photographs of the premises and two surveys of the premises;  and the deposition of Woodward.   The defendants first argue that the locus is not part of the premises.   The defendants posit that part of the driveway, including the locus, is owned by the state of Connecticut and that Woodward owns the rest of the driveway.   In support of this argument, the defendants argue that the boundary line separating the premises from state property is delineated on the land surveys, and that these surveys establish that the property line divides the properties near the end of the driveway.   The defendants point to a photograph depicting a utility pole and argue that this pole represents the boundary line and that the locus is on the side of the line owned by the state.   The defendants next argue that they had no possession or control of the locus.   The defendants rely on Woodward's testimony that he never paved or altered the locus.   Because the defendants never paved or altered the locus, the defendants argue they never exercised possession or control over the locus and therefore there is no genuine issue of material fact to decide in the present case.   Further, because there was no contract, agreement, or statute obligating the defendants to maintain the locus, the defendants argue they are entitled to summary judgment.

The plaintiff submitted thirteen exhibits, which consisted primarily of pages from the deposition transcript of Woodward.   The plaintiff argues that Woodward has workers maintain the driveway all the way to West Main Street, and that therefore there is a genuine issue of material fact as to possession and control of the locus.   The plaintiff relies on Woodward's representations in his deposition testimony to support this proposition.   The plaintiff also argues that the defendants' evidence, including the land surveys, do not clearly establish where the boundary line between the premises and state is, and therefore there is an issue of material fact as to ownership of the locus.

As a preliminary note, the courts have held that in cases involving negligence, such as the present case, summary judgment is generally not an appropriate method of resolution.  “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).   The reason for this is that “[t]he conclusion of negligence is necessarily one of fact ․” (Internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual in jury ․ If a plaintiff cannot prove all of those elements, the cause of action fails.”  Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 69, 70 A.3d 126 (2013).

With respect to negligence cases sounding in premises liability, “[a] business owner owes its invitees a duty to keep its premises in a reasonably safe condition.”  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).  “In the case of a negligence action grounded upon a theory of premises liability, the nature of the duty owed to a plaintiff depends upon the plaintiff's status on the premises at the time of the alleged injury.”   Millette v. Connecticut Post Ltd. Partnership, supra, 143 Conn.App. 69.   “[A] duty of care to an invitee ․ only attaches if the defendant exercised possession and control over the area at the time and place the injury occurred.”  Id., 70.

“Liability for injuries caused by defective premises ․ does not depend on who holds legal title, but rather on who has possession and control of the property.”  LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).   “[P]ossession cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.”  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 454, 857 A.2d 439 (2004).  “The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee.”  (Internal quotation marks omitted.)  Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773–74, 881 A.2d 379 (2005).  “[T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question ․ Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination.”  Id., 774.  “[T]he question of who possessed or controlled the premises on the date of the plaintiff's fall is a material fact that will make a difference in the outcome of this case.”  Doty v. Shawmut Bank, 58 Conn.App. 427, 433, 755 A.2d 219 (2000).

In the present case, the evidence submitted demonstrates that there is a genuine issue of material fact with respect to the defendants', and particularly Woodward's, possession and control of the property.   In his deposition testimony, Woodward admitted that he has exercised some control over the disputed area.   For example, Woodward testified that he hires Gaudio Construction Company to perform snow plowing services on the premises.   Woodward Dep., 7. Woodward testified that Gaudio Construction Company has been snow plowing the driveway, including the locus, all the way to West Main Street since Woodward purchased the premises in 1999.   Woodward Dep., 27–29.   Woodward further testified that he hires a landscaping company to maintain the premises.   Woodward Dep., 8. The landscaping company has performed services on the parts of land below the utility pole that the defendants argue are owned by the state.   For instance, the landscaping company has put down mulch on a small island of shrubbery immediately adjacent to the locus.   Woodward Dep., 19.   Woodward testified that the landscaping company has been laying mulch on the entire island, including on the property purportedly owned by the state, since Woodward purchased the premises in 1999.   Woodward Dep., 30.

Control means “the power or authority to manage, superintend, direct or oversee.”  (Internal quotation marks omitted.)  Alfano v. Randy's Wooster Street Pizza Shop II, Inc., supra, 90 Conn.App. 774.   Possession means “the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.”  (Internal quotation marks omitted.)  Silano v. Cumberland Farms, Inc., supra, 85 Conn.App. 454.   Snow plowing and landscaping services are the types of services a property owner would ordinarily have performed in maintaining his or her property.   Based on Woodward's testimony, there is a genuine issue of material fact with respect to the defendants' possession and control of the locus.   In effect, this testimony demonstrates that the land that the defendants allege is owned by the state, including the locus, has been controlled by the defendants or their agents for purposes of maintenance since Woodward purchased the property nearly fifteen years ago.   Because the defendants have not met their burden of establishing that it is “quite clear” that they did not possess or control the locus, the question of whether they maintained control sufficient to attach liability is one properly reserved for the jury.   See Alfano v. Randy's Wooster Street Pizza Shop II, Inc., supra, 774 (“[T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question.”)  (Internal quotation marks omitted).   Accordingly, the motion for summary judgment is denied.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. The adjoining highway is West Main Street in Branford, Connecticut, which is also U.S. Route One..  FN1. The adjoining highway is West Main Street in Branford, Connecticut, which is also U.S. Route One.

Wilson, Robin L., J.