Paul Ryan v. Gateway Community–Technical College Foundation, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 104)

FACTS

The plaintiff, Paul Ryan, commenced this premises liability action against the defendant, Gateway Community–Technical College Foundation, Inc. on April 13, 2012, by way of writ, summons and complaint.   The complaint is a one-count complaint filed on March 13, 2012, and alleges the following.   At all relevant times the defendant, Gateway Community Technical College, Inc. owned, operated, managed, maintained, controlled, and/or possessed all areas of real property located at 60 Sargeant Drive, located in the City of New Haven, State of Connecticut.   On or about March 15, 2010, the plaintiff was walking to the entrance of the college and fell as a result of a pothole, which the defendants, their servants, agents, employees, and/or contractors negligently and/or carelessly allowed to remain and exist.   The plaintiff alleges that the defendants knew or should have known of the existence of the pothole and faulty pavement which created the hazardous condition.   The plaintiff further alleges that the defendants, their servants, agents, employees, and/or contractors were negligent in that they “a. Failed to eliminate said hazard to make the premises reasonably safe for all individuals, including [the plaintiff];  b. Failed to warn or give notice to individuals, including [the plaintiff], of the existing dangerous hazardous conditions;  c. They knew or in the exercise of reasonable care and inspection should have known of the aforementioned condition and should have taken measures to remedy and correct the same, but this they carelessly and neglectfully failed to do;  d. Failed to patch and/or fill the pothole in said area in order to render the premises safe for all individuals, including [the plaintiff];  [and] e. Failed to provide safe and clean premises for individuals, including, [the plaintiff] which they knew or in the exercise of reasonable care should have known would be walking on the premises in said area.”   Pl. Compl., March 13, 2012.

The defendant, Gateway Community–Technical College Foundation, Inc. has moved for summary judgment on grounds that no genuine issue of fact exist that it was not in possession or control of the premises at issue on the date of the plaintiff's alleged fall, and it is therefore entitled to a judgment in its favor as a matter of law.   In support of its motion, the defendant filed an affidavit of Lindy Lee Gold, Chair of the defendant Foundation, exhibit A, and an affidavit of Louis D'Antonio, Dean of Administrative Affairs of Gateway Community College, exhibit B.

The plaintiff did not file an objection to the motion for summary judgment.   The motion was heard at short calendar on December 2, 2013.

DISCUSSION

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.”

“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.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “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.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

The defendant argues that it is entitled to judgment as a matter of law on the complaint, which sounds in premises liability, because there is no genuine issue of material fact that it did not have possession or control of the premises where the plaintiff allegedly fell on March 15, 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 ․ 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).

In support of the present motion, the defendants, as previously noted, submitted the following evidence:  an affidavit of Lindy Lee Gold, Chair of the Gateway Community–Technical College Foundation, Inc., exhibit A;  and an affidavit of Louis Louis D'Antonio, exhibit B.

“A fundamental tenet in our law is that the plaintiff's complaint defines the dimensions of the issues to be litigated.”  Pergament v. Green, 32 Conn.App. 644, 650, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).   The plaintiff's one-count complaint alleges that the defendant owned, operated, managed, maintained, controlled, and/or possessed the premises where the plaintiff allegedly tripped and fell on a pothole resulting in injuries to the plaintiff.   The plaintiff further alleges that as a result of the defendant's possession and/or control of said premises, the defendant knew or should have known of the existence of the pothole and faulty pavement which created the hazardous condition and that it should have eliminated said hazard to make the premises safe for all individuals, including the plaintiff should have warned or given notice to all individuals, including the plaintiff of the existing dangerous and hazardous conditions;  knew or in its exercise of reasonable care and inspection should have known of the hazardous condition and should have taken measures to remedy and correct said condition but failed to do so;  failed to patch and/or fill the pothole in said area in order to render the premises safe for all individuals, including the plaintiff;  and failed to provide safe and clean premises for individuals, including the plaintiff, which they knew or in the exercise of reasonable care should have known would be walking on the premises in said area.

“[T]he allegations of a complaint limit the issues to be decided on the trial of a case ․ It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint ․ Thus, the failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint ․ [E]ssential allegations may not be supplied by conjecture or remote implication ․” (Citations omitted;  internal quotation marks omitted.)   Fusek v. Jaber, Superior Court, judicial district of Danbury, Docket No. 308622 (July 2, 1992, Moraghan, J.) (7 Conn. L. Rptr. 29, 29).  “The concept of ‘premises liability’ ․ is generally understood to include liability for a ‘dangerous condition,’ which includes, but certainly is not limited to, ‘defects.’   See, e.g., 65A Corpus Juris Secundum, Sec. 381, et seq.”   Marino v. Jackson, Superior Court, judicial district of Middlesex, Docket No. CV 04 0103925 (January 13, 2005, Silbert, J.) (38 Conn. L. Rptr. 553, 553).

“Liability for an injury due to defective premises does not depend on title, but on possession and control.”  Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966).  “[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.”   (Internal quotation marks omitted.)  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 454, 857 A.2d 439 (2004).  “[T]he 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.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).  “Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property.”  Silano v. Cumberland Farms, Inc., supra, 85 Conn.App. 453.

Lindy Lee Gold, the Chair of the defendant, has averred the following.   Her affidavit is made upon personal knowledge and in support of the motion for summary judgment.   At the time of the plaintiff's alleged fall, she was Chair of the defendant Foundation and “the Foundation was, and remains, a non-profit organization, which is qualified by the Internal Revenue Service as a 501(c)(3) charitable organization.   The Foundation's sole purpose is to support Gateway Community College and its mission through fundraising, scholarship selection, and other volunteer activities.   The Foundation performs its mission through the work of volunteers.   The Foundation has no paid employees.”   Exhibit A.

Louis D'Antonio averred the following.   His affidavit is made upon personal knowledge and in support of the defendant's motion for summary judgment.   That he is employed by Gateway Community College as the Dean of Administrative Affairs.   The College is part of the State of Connecticut's System of Community Colleges.   His responsibilities include administrative support services and operations, and maintenance for the College.   The defendant Foundation does not lease or otherwise occupy any particular space at the College.  “The Foundation has never owned, operated, managed, maintained, controlled or possessed any portion of the premises located at 60 Sargeant Drive, New Haven, Connecticut.   As of March 15, 2010, the State of Connecticut owned, possessed, and controlled the premises located at 60 Sargeant Drive, New Haven, Connecticut.”   Exhibit B.

The plaintiff did not file an opposition memorandum or evidence to refute the defendant's evidence or raise an issue of fact that it did not own, possess or control the premises where the plaintiff allegedly fell.

“An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․” Here, the defendant has met its burden that no issue of fact exists that on March 15, 2010, it did not own, possess, or control the premises where the plaintiff allegedly fell.   The defendant has negated the specific allegation in the plaintiff's complaint which alleges that “[a]t all times hereinafter mentioned the Defendant, Gateway Community–Technical College, [Foundation] Inc., owned, operated, managed, maintained, controlled, and/or possessed all areas of real property located in the City of New Haven, State of Connecticut.”   Accordingly, the court concludes that no issue of fact exists that on March 15, 2010, the defendant did not own, possess, or control the premises where the plaintiff allegedly fell, and therefore it is entitled to a judgment in its favor as a matter of law.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is granted.

Wilson, J.

Wilson, Robin L., J.