PPA v. Erick Wilson (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 111

Factual Background

The plaintiffs, Brandon Beebe (the minor plaintiff) and Catherine Beebe, filed a complaint on November 7, 2012.   In the complaint, the plaintiffs allege, inter alia, that on October 23, 2010, the minor plaintiff was helping his neighbor, the defendant, Erik Wilson, split wood with a wood splitter.   Paragraph 5 of counts one and three states that “[a]s a log was loaded onto the splitter, suddenly and without warning the minor plaintiff Brandon Beebe's finger was caused to be painfully severed from his hand,” and is arguably a premises liability claim as is hereinafter set forth.   In paragraph 6 of counts one and three, the plaintiffs state that said occurrence was due to the negligence and carelessness of the defendant in one or more of the following ways:  (1) in that the defendant failed to properly supervise;  (2) in that the defendant failed to properly train and instruct;  and (3) in that the defendant failed to intercede.   These allegations sound in ordinary negligence.

In counts two and four, the plaintiffs argue that said incident was caused by the willful, wanton, and/or reckless conduct of the defendant.   More specifically, (1) in that the defendant knew or should have known that the minor plaintiff was too young and inexperienced to be engaging in such activity;  (2) in that the defendant totally ignored the inherent and dangerous risk posed by such activity;  (3) in that the defendant knew, or in the exercise of reasonable care should have known, that the minor plaintiff should not have been invited to participate in the wood splitting activity;  (4) in that the defendant allowed such a dangerous event to take place;  (5) in that the defendant failed to intercede or have someone who was knowledgeable perform the activity or stop the activity as reasonable and necessary;  and (6) in that the defendant totally ignored the risk inherent in the activity he allowed the minor plaintiff to engage in.

The defendant moves for summary judgment for the reason that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law because in a premises liability case (1) the defendant owed no duty to warn the minor plaintiff regarding the open and obvious dangers of putting his finger in between a log and a blade on a log splitter;  and (2) the minor plaintiff was the sole proximate cause of his own injuries.   The plaintiffs counter that (1) the defendant has failed to meet its burden of demonstrating that he did not owe the minor plaintiff a legal duty to warn as a matter of law;  (2) the defendant has failed to meet its burden that the minor plaintiff was the sole proximate cause of the minor plaintiff's injuries;  and 3) this is a case based upon ordinary negligence and not premises liability.

The court heard oral argument at short calendar held on January 21, 2014.   The court has also reviewed the memoranda of law and all exhibits submitted by the parties.   The court denies the motion for summary judgment for the reasons set forth below.

I. STANDARD OF REVIEW

“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.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).  “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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”   (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

II. DISCUSSION

A. Ordinary Negligence

In paragraph 6 of counts one and three, the plaintiffs allege claims of ordinary negligence.  “The essential elements of a cause of action sounding in negligence are duty, breach of that duty, causation, and actual injury ․ A duty of care is a prerequisite to a finding of negligence ․ The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant ․

“Duty is a legal conclusion about relationships between individuals, made after the fact ․ Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ․ A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm from the general nature of that suffered was likely to result from his act or failure to act.”  (Citations omitted;  internal quotation marks omitted.)  Roe # 1 v. Boy Scouts of America Corp., 147 Conn.App. 622, 641–42 (2014).

Regarding the issue of duty, the court first must consider whether the defendant should have foreseen the minor plaintiff's injuries.  “[O]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant ․ By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?  ․ Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation at hand would obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken.”   (Citations omitted;  internal quotation marks omitted.)  LePage v. Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002).

Second, the court must consider whether public policy suggests the imposition of a duty.  “[T]he conclusion that a particular injury to a particular plaintiff ․ possibly is foreseeable does not, in itself, create a duty of care.”  (Internal quotation marks omitted.)  Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 528, 832 A.2d 1180 (2003).  “Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.”  (Internal quotation marks omitted.)  Id., 529.  “[I]n considering whether public policy suggests the imposition of a duty, [courts] ․ consider the following four factors:  (1) the normal expectations of the participants in the activity under review;  (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdictions ․ [Courts] apply these four factors [to decide whether] imposing a duty of care on the defendants ․ is not inconsistent with public policy.”  (Citation omitted;  internal quotation marks omitted.)  Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005).

In the present case, the defendant argues that summary judgment is proper because the defendant owed no duty to warn the minor plaintiff regarding the open and obvious dangers of putting his finger in between a log and a blade on a log splitter.¹  The defendant, however, fails to argue that he did not foresee the minor plaintiff's injuries, nor that the imposition of a duty offends public policy.   Therefore, the defendant has failed to meet his burden of showing the absence of any genuine issue of material fact as to the issue of duty under the theory of ordinary negligence.

Moreover, “[t]o prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries ․ [L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.   The first component of legal cause is causation in fact.”  (Internal quotation marks omitted.)  Malloy v. Colchester, 85 Conn.App. 627, 633, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004).

The second component of legal cause is “[p]roximate cause [which is] defined as an actual cause that is a substantial factor in the resulting harm ․ The test for proximate cause is whether the defendant's conduct was a substantial factor in producing the plaintiff's injury ․ This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence ․ The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Citations omitted;  internal quotation marks omitted.)  Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321–22, 852 A.2d 703 (2004).  “[I]ssues of proximate cause may be determined by way of summary judgment only in rare circumstances.”  Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011).

Based on the evidence submitted in support of their motion for summary judgment, the defendant takes the position that the minor plaintiff was the sole proximate cause of his own injuries.   The defendant cites to several statements made by the minor plaintiff in his deposition in support of his argument.   For example, that the minor plaintiff admitted that he received instructions and warnings regarding the dangers of the machine and log splitting process.   The minor plaintiff was not confused by the warnings and he fully appreciated the risks.   Moreover, of his own free will, the minor plaintiff chose to try to reposition the log and put his hand where it was at risk of harm.   Therefore, the minor plaintiff made a mistake in judging where his finger was located in relation to the end of the log and blade of the splitter, but it was his sole mistake.   Thus, the defendant argues that no further warnings or instructions would have been successful in altering the minor plaintiff's conduct and the defendant, therefore, is entitled to judgment as a matter of law.²

The plaintiffs counter that genuine issues of material fact exist with respect to the issue of causation.   In particular, the plaintiffs argue that by inviting the minor plaintiff over to his property and allowing the minor plaintiff to have access to and use of the dangerous, heavy piece of equipment, the defendant placed the minor plaintiff in harm's way and, therefore, was the proximate cause of the minor plaintiff's injuries.   Moreover, the plaintiffs have claimed various ways in which the defendant's alleged negligence caused the minor plaintiff's injuries, including failing to properly supervise, failing to properly train and instruct, and failing to intercede.   In seeking summary judgment, the moving party “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.)   Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.   In this case, the issue of causation is one for the trier of fact because a fair and reasonable person could reach more than one conclusion as to the issue of causation.   See Label Systems Corp. v. Aghamohammadi, supra, 270 Conn. 322.

B. Premises liability

The allegations of paragraph 5 in counts one and three arguably sound in premises liability.³  “[T]he interpretation of pleadings is always a question of law for the court ․ Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.”  (Internal quotation marks omitted.)  Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 46, 58 A.3d 293 (2013).

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).  “When [a] plaintiff's allegations stem from an injury caused by a dangerous condition on the premises ․ liability is dependent on possession and control of the dangerous condition and the claim is therefore for negligence under a theory of premises liability.”  (Internal quotation marks omitted.)   Perrotta v. Hartford Hospital, Superior Court, judicial district of New Britain, Docket No. CV–12–6016449–S (December 16, 2013, Abrams, J.).   In the present case, there is no dispute that the defendant was in possession and control of the property.

“Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact ․ Where, however, the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented.”  (Internal quotation marks omitted.)  Gargano v. Azpiri, 110 Conn.App. 502, 506, 955 A.2d 593 (2008).   In the present case, there is no dispute that the minor plaintiff was an invitee.   Under the theory of premises liability, “[t]he law is clear that [a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.”   (Internal quotation marks omitted.)  Id., 508.  “[A] possessor of land has no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition ․ Warning an invitee against dangers which are either known to him or are so obvious to him that he may be expected to discover them is unnecessary.”  (Citation omitted;  internal quotation marks omitted.)  Kurti v. Becker, 54 Conn.App. 335, 344–45, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).   When “there [is] room for reasonable disagreement as to whether the plaintiff was or should have been aware of the [dangerous] condition ․ the jury and not the trial judge should [determine] whether the defendant had a duty to warn the plaintiff of the ․ condition ․” Fleming v. Garnett, 231 Conn. 77, 84, 646 A.2d 1308 (1994).   The open and obvious analysis also consists of whether the plaintiff was aware of the full extent of the dangerous condition.  Id., 84–85.

In the present case, the defendant takes the position that the minor plaintiff was completely aware of the dangers of putting his hands in between the log and the blade when the press was pushing the log toward the blade.   In support of his argument, the defendant cites to several statements made by the minor plaintiff during his deposition.   In particular, that the defendant showed and explained to the minor plaintiff all of the hazards with the machine, including how the splitter worked and what to watch out for;  how the splitter worked exactly and the process that they were going to be doing step by step;  that the minor plaintiff could use the lift mechanism to put the log onto the machine;  what to look out for, meaning pretty much where all the dangerous parts of the machine are;  and that the splitter consisted of a hydraulic press that would force the log through an eight way splitter blade.   In addition the minor plaintiff testified that if his hand was stuck in between the press and the wood, he knew his hand could get crushed and that if he put his hand on the other side of the wood, the log—in between the log and the blade, he knew that his hand could get pushed into the blade.   Thus, the defendant argues that summary judgment is proper because the defendant owed no duty to warn the minor plaintiff.

The plaintiffs counter that the fact that the defendant provided these “warnings” illustrates that the defendant was aware of the dangers inherent in the activity.   Moreover, a minor child cannot be found to have the requisite knowledge to appreciate the risks associated with this type of activity.   The plaintiffs cite to several statements made by the minor plaintiff in support of their argument.   In particular, that the minor plaintiff had no experience with this type of work and had never used a log splitter before and had only limited experience using any types of tools and machinery, occasionally using a fork lift on his father's work site.   Since there is room for reasonable disagreement as to whether the minor plaintiff was or should have been aware of the dangerous condition, this is a matter for the jury to determine whether the defendant had a duty to warn the defendant of the condition.   See Fleming v. Garnett, supra, 231 Conn. 84.

III. CONCLUSION

For all of the foregoing reasons the defendant's motion for summary judgment is denied.

Marcus, J.

FOOTNOTES

FN1. If the defendant is making the argument that the plaintiff should be precluded from recovery because the danger was open and obvious under the theory of ordinary negligence, this argument amounts to the defense of comparative negligence.   Even if the plaintiff is assumed to have appreciated the risk of placing his finger in between a log and a blade on a log splitter, his negligence would not bar recovery unless his negligence was greater than the defendant's alleged negligence.   See General Statutes § 52–572h..  FN1. If the defendant is making the argument that the plaintiff should be precluded from recovery because the danger was open and obvious under the theory of ordinary negligence, this argument amounts to the defense of comparative negligence.   Even if the plaintiff is assumed to have appreciated the risk of placing his finger in between a log and a blade on a log splitter, his negligence would not bar recovery unless his negligence was greater than the defendant's alleged negligence.   See General Statutes § 52–572h.

FN2. Moreover, the defendant cites to several Connecticut cases in support of his argument that the minor plaintiff's actions were the sole proximate cause of his injuries.   The only case on point is Carter v. Barrett, Superior Court, judicial district of Middlesex, Docket No. CV–12–6007241–S (March 12, 2013, Domnarski, J.).   This case is distinguishable because it involved premises liability.   Further, in the present case, the plaintiffs have raised a genuine issue of material fact as to whether the defendant was the proximate cause of the minor plaintiff's injuries..  FN2. Moreover, the defendant cites to several Connecticut cases in support of his argument that the minor plaintiff's actions were the sole proximate cause of his injuries.   The only case on point is Carter v. Barrett, Superior Court, judicial district of Middlesex, Docket No. CV–12–6007241–S (March 12, 2013, Domnarski, J.).   This case is distinguishable because it involved premises liability.   Further, in the present case, the plaintiffs have raised a genuine issue of material fact as to whether the defendant was the proximate cause of the minor plaintiff's injuries.

FN3. It is important to note, however, that courts have “found that a claim sounds in ordinary negligence, and not premises liability, where the plaintiff has not alleged the crucial fact which would create a premises liability case:  possession and control of the property.”  (Emphasis omitted, internal quotation marks omitted.)   See e.g., Fagan v. State, Superior Court, judicial district of New Haven, Docket No. CV–11–6025092–S (June 7, 2013, Wilson, J.).   In the present case, the plaintiffs' complaint does not allege that the defendant was in possession and control of the property.   However, given the arguments in response to the motion for summary judgment, paragraph 5 of counts one and three arguably sound in premises liability.   Moreover, paragraph 4 could arguably allege that the defendant was in possession and control of the property..  FN3. It is important to note, however, that courts have “found that a claim sounds in ordinary negligence, and not premises liability, where the plaintiff has not alleged the crucial fact which would create a premises liability case:  possession and control of the property.”  (Emphasis omitted, internal quotation marks omitted.)   See e.g., Fagan v. State, Superior Court, judicial district of New Haven, Docket No. CV–11–6025092–S (June 7, 2013, Wilson, J.).   In the present case, the plaintiffs' complaint does not allege that the defendant was in possession and control of the property.   However, given the arguments in response to the motion for summary judgment, paragraph 5 of counts one and three arguably sound in premises liability.   Moreover, paragraph 4 could arguably allege that the defendant was in possession and control of the property.

Marcus, Shelley A., J.