Maria Raidan v. Edward R. Schreinder, Jr. et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

This is a matter rising out of a slip and fall at a location that was both commercial and residential property.   On or about February 28, 2011 at about 8:30 in the morning, the plaintiff was exiting her residence going towards her parked vehicle.   The plaintiff claims that she slipped and fell on ice on the walkway leading to her car.   The issue raised by both parties is whether or not there was an ongoing winter storm and what sort of precipitation was being generated by that storm.

Pursuant to Connecticut Practice Book § 17–49, “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.”

“It is also established that [s]ummary judgment procedure is especially ill-adapted to negligence cases, where the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation.”  Maffucci v. Royal Park Ltd. Partnership, 42 Conn.App. 563, 568, 680 (1996).

The plaintiff's expert claimed that the particular storm had ended sometime before 8:30 a.m. and the plaintiff alleged that there was some form of frozen precipitation on the subject sidewalk.   The plaintiff alleges that the defendant has a certain standard of care that must be met under such circumstances once the subject storm has ended.   The defendant counters that he must have due notice and reasonable opportunity to remedy any dangerous or hazardous condition that may be existing post-storm.  Krause v. Newtown, 211 Conn. 191 (1989).   Any such hazardous condition may have been caused by the subject storm or may be pre-existing.

The plaintiff also looks to an Appellate Court case, Cooks v. O'Brien Properties, 48 Conn.App. 339, 345 (1998), which introduces the “unusual circumstances” issue which the plaintiff argues has some application here.   Those unusual circumstances would involve the fact that that there is only one way of entering and exiting the plaintiff's residence over the subject walkway in order to access her motor vehicle.

By way of affidavits and deposition testimony, both sides have created conflicting evidentiary issues that allows the court to find that there are material issues of fact involving this incident and the particular weather conditions prior to and existing at the time of the alleged fall and whether the defendant was put on sufficient notice concerning the alleged accumulation of ice and frozen snow at the time in question, whether visible or not.

The Court takes the position that an “issue of fact encompasses not only evidentiary facts in issue, but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  Toffolon v. Town of Avon, 173 Conn. 525, 530 (1977);  see also Pelletier v. Opportunities Industrialization Center of New London, 2011 WL 2739631, Conn.Sup.Ct., Jud. Dist. New London, June 24, 2011 (Martin, J.), citing Morascini v. Commissioner of Public Safety, 236 Conn. 781.

The Court relies on those cases which support the general tenet that these cases are “best left to the trier of fact.”  Halsed v. BJ's Wholesale Club, 2005 WL 1757199, Conn.Sup.Ct., Jud. Dist. Litchfield, June 14, 2005 (Trombley, J.);  Gulycz v. Stop & Shop Companies, Inc., 29 Conn.App. 519 (1992).

This Court adopts the plaintiff's position in this motion.   In so holding, the Court finds that each side can argue the salient factual issues as to whether and for how long any such hazardous condition may have existed and whether the defendant had sufficient time in the exercise of due care, to discover and remedy the alleged condition.

Therefore, the defendant's Motion for Summary Judgment is denied.

BY THE COURT

V. ROCHE, J.

Roche, Vincent E., J.