William Leuze v. Connecticut Rivers Council, Inc. Boy Scouts of America (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 122

On May 31, 2013, the defendant filed a motion for summary judgment and appended the following exhibits:  (1) affidavit of scout executive Steven A. Smith;  (2) affidavit of Craig Stover, a camp ranger employed by the defendant;  (3) an email from Debbie Baker (a volunteer) to Dawn Donley detailing the accident;  and (4) excerpts from the plaintiff's deposition.   On November 15, the plaintiff filed a memorandum in opposition and attached:  (1) excerpts from the deposition of Robert Steele, the defendant's director of support services;  (2) excerpts from the deposition of Craig Stover, along with an official description of his position;  and (3) additional excerpts from the plaintiff's deposition.   The defendant filed a reply memorandum and the matter was heard at short calendar on December 2, 2013.

BACKGROUND

On November 29, 2010, the plaintiff, William Leuze, filed a one-count complaint against the defendant, Connecticut Rivers Council, Inc., Boy Scouts of America.   The plaintiff later amended his complaint ¹ and alleges that, on the evening of October 19, 2008, the plaintiff, a boy scout volunteer, was helping set up the “Haunted Woods” Halloween event.   The event was to occur the following week at Camp Tadma, property owned by the defendant and located in Bozrah, Connecticut.   While decorating, the plaintiff fell off of the wooden bench upon which he had been standing and suffered injuries.   The plaintiff alleges that the bench was worn, unstable, and subject to tipping.

LAW RE MOTION FOR SUMMARY JUDGMENT

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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 ․ [Furthermore] the evidence must be viewed in the light most favorable to the opponent.”  (Internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 228, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).  “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).

APPLICABLE LAW

To establish a landowner's liability to an invitee for a defective condition upon the land, “the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the defendant should, in the exercise of reasonable care, have discovered it in time to remedy it.”  (Internal quotation marks omitted.)  Martin v. Stop & Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002).   The defendant's memorandum concedes that the defendant owns the property and does not dispute the plaintiff's status as an invitee, but rather contends that it had no actual or constructive notice of any alleged defects in the bench.

“Under Connecticut law, the existence of both actual and constructive notice is a question of fact.”  Vendrella v. Astriab Family Ltd. Partnership, 133 Conn.App. 630, 659, 36 A.3d 707, cert. granted, 304 Conn. 919, 41 A.3d 306 (2012).  “Whether or not the defect had existed for a length of time sufficient to constitute constructive notice is a question of fact for the jury and unless the period of time is such that but one conclusion could be found, its determination should be left to the trier.”  Baker v. Ives, 162 Conn. 295, 307, 294 A.2d 290 (1972).  “The defendant can be charged with having constructive notice of a defect when it is of such a nature and duration that a reasonable inspection would have disclosed the risk.”  (Emphasis in original;  internal quotation marks omitted.)  Ormsby v. Frankel, 54 Conn.App. 98, 110–11, 734 A.2d 575 (1999), aff'd, 255 Conn. 670, 693, 768 A.2d 441 (2001).   “What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case.”   (Internal quotation marks omitted.)  Considine v. Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006).

Here, the defendant has offered evidence, by way of Craig Stover's affidavit, that the defendant had not received any complaints regarding the wooden benches and had never observed any defects in the benches.   The plaintiff, however, testified in his deposition that the benches were “old and worn, and not stable.”   Moreover, Stover acknowledged in his deposition that the benches had been at the camp since he began in September of 1994 and had, in fact, “long preceded” him.   Accordingly, these benches had been on the property for at least fourteen years before the plaintiff was injured in October of 2008.   Furthermore, Stover testified that, on occasion, repairs were left for volunteer fathers to perform, however if those repairs were neglected, Stover would eventually perform them himself.   More specifically, Stover discussed an instance where a fascia board—a wooden board or sheet metal used to secure rain gutters—was repaired in 2012, four years after the defect had been noted during the 2008 annual inspection of the property.   The reasonableness of the defendant's inspection procedures and whether the benches had been defective (assuming they were defective) for a period of time sufficient to constitute constructive notice are questions of fact for the jury.

The defendant has also moved for summary judgment on the alternative theories of liability alleged in count one—namely, negligent supervision and respondeat superior.   Our state Supreme Court has discussed the divergent views regarding partial summary judgment rulings:  “We note that there is a division of authority in the trial courts as to whether ․ a court is limited to rendering summary judgment on an entire count in a complaint, rather than having the flexibility to render summary judgment on one or some of the multiple causes of action contained in a single count in that complaint.”  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 809 n.41, 967 A.2d 1 (2009).   While the court did not select a preferred method, id., many trial courts have concluded “that it is not possible to render summary judgment on part of a count of a complaint ․ [T]he majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment.” ²  Silvan v. Wauregan Café, LLC, Superior Court, judicial district of New London, Docket No. CV–10–6002424–S (November 17, 2011, Cosgrove, J.) [52 Conn. L. Rptr. 863].   Given that the evidence adduced by both parties presents genuine issues of material fact with regard to the plaintiff's premises liability theory, it is unnecessary for this court to address arguments with respect to the plaintiff's alternative theories of liability alleged in count one.

ORDER

For these reasons, the defendant's motion for summary judgment is denied.

Devine, J.

FOOTNOTES

FN1. The amended complaint, filed on November 18, 2011, added a second count alleging violations of General Statutes § 19a–420 et. seq., and Regs., Conn. State Agencies § 19–13–B27a(q) regulating maintenance of youth camp sites.   On May 23, 2012, Judge Cosgrove granted the defendant's motion to strike that count after determining that none of the cited statutory and regulatory provisions created a private right of action.   Leuze v. Connecticut Rivers Council, Inc., Superior Court, judicial district of New London, Docket No. CV–10–6006879–S (May 23, 2012, Cosgrove, J.) [54 Conn. L. Rptr. 94]..  FN1. The amended complaint, filed on November 18, 2011, added a second count alleging violations of General Statutes § 19a–420 et. seq., and Regs., Conn. State Agencies § 19–13–B27a(q) regulating maintenance of youth camp sites.   On May 23, 2012, Judge Cosgrove granted the defendant's motion to strike that count after determining that none of the cited statutory and regulatory provisions created a private right of action.   Leuze v. Connecticut Rivers Council, Inc., Superior Court, judicial district of New London, Docket No. CV–10–6006879–S (May 23, 2012, Cosgrove, J.) [54 Conn. L. Rptr. 94].

FN2. See, e.g., First American Title Ins. Co. v. 273 Water Street, LLC, Superior Court, judicial district of Hartford Docket No. CV–08–4041234–S (January 5, 2012, Peck, J.);   Brooks v. Sallie Mae, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–09–6002530–S (December 20, 2011, Jennings, J.T.R.);   Fuller v. Manchester Obstetrics Associates, Superior Court, judicial district of Hartford, Docket No. CV–07–5012261–S (June 3, 2011, Robaina, J.);   Estrada v. Stamford Board of Education, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–06–5002313–S (November 19, 2010, Tobin, J.);   CitiMortgage, Inc. v. Ceraso, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–08–5017954–S (May 4, 2010, Owens, J.T.R.);   but see Sallato v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. CV–09–5032170–S (October 6, 2010, Robinson, J.)..  FN2. See, e.g., First American Title Ins. Co. v. 273 Water Street, LLC, Superior Court, judicial district of Hartford Docket No. CV–08–4041234–S (January 5, 2012, Peck, J.);   Brooks v. Sallie Mae, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–09–6002530–S (December 20, 2011, Jennings, J.T.R.);   Fuller v. Manchester Obstetrics Associates, Superior Court, judicial district of Hartford, Docket No. CV–07–5012261–S (June 3, 2011, Robaina, J.);   Estrada v. Stamford Board of Education, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–06–5002313–S (November 19, 2010, Tobin, J.);   CitiMortgage, Inc. v. Ceraso, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–08–5017954–S (May 4, 2010, Owens, J.T.R.);   but see Sallato v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. CV–09–5032170–S (October 6, 2010, Robinson, J.).

Devine, James J., J.