Anthony Holland v. Eastern Ice Company et al. (2015)

MEMORANDUM OF DECISION ON MOTION OF SHREE HARI OM, LLC, FOR SUMMARY JUDGMENT (# 130)

The plaintiff Anthony Holland's complaint alleges that, while an invitee—a customer—at a Norwichtown convenience store (“the premises”) operated by Shree Hari Om, LLC, doing business as Chucky's Mobil, he bought a bag of ice.   The complaint alleges that the plaintiff was told to get the purchased bag from an ice chest outside the front of the store and that, when he did so, the ice chest door fell on his head and injured him.   On December 2, 2014, defendant Shree Hari Om, LLC, moved for summary judgment on the essential basis that it had neither possession nor control of the ice chest.   On February 3, 2015, the plaintiff filed an opposing brief with exhibits A through G. On February 18, 2015, the plaintiff filed supplemental exhibits H and I. On April 22, 2015, the movant filed a reply to the plaintiff's opposition, including an affidavit of Vinjay Patel, a manager of the movant.   The motion was argued on May 18, 2015.

Summary judgment is a method of resolving litigation when pleadings, affidavits, and other proper evidence 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.  Patel v. Flexo Converters U.S.A, Inc., 309 Conn. 52, 56, 68 A.3d 1162 (2013).   In ruling on the present motion, “the court's function is not to decide issues of material fact, but, rather, to determine whether any such issues exist.”  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   Summary judgment is appropriate only if a fair and reasonable person could conclude only one way;  that is, when a jury would not be at liberty to reach a verdict for the non-moving party and a directed verdict for the moving party would be required.  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   Once the movant has met that burden, however, the opposing party may defeat the motion only by presenting evidence that reveals a material, factual dispute.  Id., 11.   Neither unsworn assertions of fact nor mere conclusions are evidence for present purposes.   See id. (assertions of fact);  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996) (conclusions).   “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).

The movant relies on admissions of co-defendant Eastern Ice Company (“ice company”) that the ice company owned, installed, and was responsible for maintaining and inspecting the ice chest at the premises.   Those admissions, taken as true, do not prove that the movant had no duty to, for example, use reasonable care to keep the ice chest on the movant's premises in a reasonably safe condition, inspect the ice chest for unsafe or defective conditions, or warn the plaintiff of a dangerous condition, as alleged (among other claims) in count two of the complaint.   The store lease, submitted in opposition to the motion, indicates that the movant agreed that “[n]o other use [than convenience grocery store] may be made ․ including allowing third party vendors or any party thereof to use or operate in any portion of [the premises] without the prior written consent of the Landlord”;  that the movant had the duty to “take good care of the ․ exterior of [the premises] and ․ maintain and keep the same in good order and condition ․”;  and that the movant would not “sublet ․ assign ․ or otherwise dispose of ․ Tenant's interest in this lease ․” The movant has not shown as a matter of law that it did not have control over the ice chest.

The testimony, by affidavit (# 157), of a manager of the movant limited liability company to the contrary may not be considered to the extent it contains opinions or conclusions of law regarding the movant's duties, however genuinely he may believe those opinions or conclusions.   See Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014).   That affidavit does make clear that the movant bought bags of ice from the ice company for resale.   It does not matter that the ice chest was outside the store:  essentially, whether the ice chest was inside or outside the store, the ice chest was a storage (and presumably a display/advertising) unit for something offered for sale by the movant.   Keeping that unit reasonably safe for invitees, and particularly for customers, was part of the movant's duty in its general, undisputed control of the premises.   To illustrate, if a soft drink company provided a refrigerated display for its products sold by a store owner and the door to that display became dangerous long enough before it injured a customer that the store owner knew or should have known of the dangerous condition, the owner could not escape liability based on the soft drink company's duty to maintain the appliance.

Viewing the evidence in the light most favorable to the non-moving party, as the court must, Patel v. Flexo Converters U.S.A., Inc., supra, 309 Conn. 57, the court cannot conclude that the movant is entitled to judgment as a matter of law.   The motion of defendant Shree Harm Om, LLC, for summary judgment is denied.

Cole–Chu, J.

Cole–Chu, Leeland J., J.