Opinion
CV106015850S.
11-01-2012
Kelly BOUTOTE v. DEERFIELD REALTY CO.
UNPUBLISHED OPINION
WILSON, J.
FACTS
On October 26, 2010, the plaintiff, Kelly Boutote, commenced this premise liability action against the defendants, Deerfield Realty Company (Deerfield) and Sunset Realty Company (Sunset). The plaintiff alleges the following facts in the two-count amended complaint. On February 16, 2010, the plaintiff slipped and fell on the interior stairs of an apartment that is in a property owned, possessed, controlled and/or operated by the defendants. As a result of the incident, the plaintiff suffered pain and sustained various injuries. In counts one and two, the plaintiff seeks damages against Deerfield and Sunset, respectively, on the ground that her injuries were a result of the defendants' carelessness and negligence. Specifically, the plaintiff alleges that (a) the stairs were defectively designed and/or installed; (b) the riser heights of the stairs were excessive and unsafe; (c) the stairs failed to meet the minimum required level of illumination; (d) the defendants failed to provide and maintain adequate and sufficient lighting in the area where the fall occurred; and (e) the slip resistance on the steps was greater than the accepted standard.
On February 22, 2012, the defendants filed a motion for summary judgment, accompanied by a memorandum in support, an affidavit and a transcript of the plaintiff's deposition. In response, the plaintiff filed an objection to the motion on May 1, 2012, accompanied by a memorandum in support, the plaintiff's affidavit and her notices of disclosure of expert witnesses to which she appended an experts' report. The defendants then filed a reply brief in response to the plaintiff's objection opposing the court's consideration of the documents that the plaintiff relies upon. This matter was heard at short calendar on August 13, 2012.
DISCUSSION
" 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). " [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... 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, 11, 938 A.2d 576 (2008). " The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 465, 976 A.2d 23 (2009). " 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 premises liability cases, " [t]o hold the defendant liable for her personal injuries ... 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.) Palmieri v. Stop & Shop Cos., 103 Conn.App. 121, 123-24, 927 A.2d 371 (2007).
The defendants argue that the court should grant the motion for summary judgment on the grounds that there is no genuine issue of material fact with regard to the first element, the existence of a premise defect where the plaintiff fell, and the second element, that they did not have actual or constructive notice of the alleged defect. Specifically, as to the defendants' first argument, they refer to the plaintiff's deposition testimony in which she admitted that in the stairway where she allegedly fell, the lighting was adequate, the height of the stairs did not cause her fall, that she alone cared for the stairs, and that she fell because the stairs were slippery at the time of the incident. The plaintiff objects to the motion on the basis that issues of material fact exist with respect to the adequacy of the lighting and the stairs being too high. In support thereof, she refers to her own affidavit and an engineering report. In reply, the defendants raise procedural objections to the two documents that the plaintiff relies upon. They argue that the plaintiff's affidavit should not be considered by the court pursuant to the sham affidavit rule, as the statements she makes therein directly contradict her prior deposition testimony. Additionally, the defendants argue that the engineers' report has not been authenticated and contains inadmissible hearsay.
Regarding the defendants' first objection, parties cannot create issues of fact by submitting self-serving affidavits to contradict their own prior sworn testimony. Krasnow v. 31 Cannon Street, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 5020077 (August 16, 2010, Arnold, J.). Although our appellate courts have not expressly adopted the sham affidavit rule, the Appellate Court discussed it in DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 2 A.3d 963 (2010), rev'd on other grounds, 306 Conn. 107, 49 A.3d 951 (2012). As the court explained, " [a sham affidavit is an] affidavit that contradicts clear testimony previously given by the same witness, [usually] used in an attempt to create an issue of fact in response to a motion for summary judgment." (Internal quotation marks omitted.) Id., at 616-17. Pursuant to this rule, under some circumstances, a court will disregard " an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior sworn deposition testimony." (Internal quotation marks omitted.) Id., at 616.
As explained herein, several judges of the Superior Court have concluded that the rule is consistent with Connecticut's summary judgment procedure. " The ‘ sham affidavit’ rule refers to the trial court practice of disregarding an offsetting affidavit in opposition to a motion for summary judgment that contradicts the affiant's prior deposition testimony." Ross v. Dugan, Superior Court, judicial district of New London, Docket No. CV 10 6006404 (December 16, 2011, Cosgrove, J.) (53 Conn. L. Rptr. 167, 169); see also Perrone v. 100 Great Meadow Road Associates, Superior Court, judicial district of Hartford, Docket No. CV 09 5030571 (September 19, 2012, Schuman, J.).
" One of the primary justifications for the sham affidavit rule is that previous depositions are much more reliable than offsetting affidavits ... [T]he deposition of a witness will usually be more reliable than his affidavit, since the deponent was either cross-examined by opposing counsel, or at least available to opposing counsel for cross-examination ... [M]ere inconsistencies in witness statements— e.g., inconsistencies within deposition testimony itself— do not fall within the ambit of the sham affidavit rule, which only concerns offsetting affidavits that contradict deposition testimony in an effort to defeat summary judgment." (Internal quotation marks omitted.) Woodward v. Lazarus, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002788 (June 21, 2012, Pickard, J.); see also U.S. Bank N.A. v. Sekulski, Superior Court, judicial district of Litchfield, Docket No. CV 06 6000134 (July 24, 2012, Pickard, J.). In order to disregard an affidavit submitted in opposition to a motion for summary judgment, there must be a contradiction between the affidavit and the prior deposition testimony, rather than a mere amplification or explanation of the deposition testimony. DiPietro v. Farmington Sports Arena, LLC, supra, 123 Conn.App. at 617.
In applying the sham affidavit rule, " the court is not deciding whether the witness is credible. Rather, the court is exercising its authority to determine whether any ‘ genuine’ issues of material fact exist. This power does not emanate from the court's role as a fact-finder, a role which lays dormant during the summary judgment process. Rather, this power emanates from a court's ability to make an initial assessment of any evidence. A [trial] court exercises its prerogative to assess evidence at trial by determining whether any evidence is admissible. The court is not acting as a fact-finder when it makes such determinations. A [trial] court also exercises its prerogative to assess evidence at the summary judgment stage by determining whether an alleged factual conflict is ‘ genuine .’ " (Internal quotation marks omitted.) Ross v. Dugan, supra, 53 Conn. L. Rptr. at 170. In fact, our Supreme Court has explicitly stated that the court can properly strike a false affidavit from the file and render summary judgment when there is " a finding of the court to the effect that the affidavit was false." (Emphasis added.) Perri v. Cioffi, 141 Conn. 675, 680, 190 A.2d 355 (1954). Moreover, as the court noted in Ross v. Dugan, supra, Superior Court, 53 Conn. L. Rptr. at 169: " [A]ll federal circuit courts that have considered application of the sham affidavit rule have adopted it in some form ... Most state courts that have considered this issue have adopted a rule that is consistent with the sham affidavit rule." (Citations omitted.)
In one Superior Court case, the court expressly declined to apply the sham affidavit rule. See Baker v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 09 5030596 (October 15, 2010, Zoarski, J.T.R.) (50 Conn. L. Rptr. 712). In that case, the court stated that " in a summary judgment proceeding, affidavits which contradict the affiant's prior sworn deposition testimony should be considered and, if believed, taken together with all other evidence to determine whether a genuine issue of material fact exists." Id., at 713. In reaching this conclusion, the court relied on the language in DiPietro, supra, 123 Conn.App. at 617, where the court stated: " The usual legal remedy for inconsistent statements by a witness is for the adversary to point them out for purposes of impeaching the witness' credibility; such an inconsistency is not ordinarily a ground for precluding the witness' testimony entirely." This quote, however, was not considered in the correct context in the Baker case. The court in DiPietro expressly declined to decide whether to adopt the sham affidavit rule. In that case, in his affidavit, the plaintiff's expert stated that " [t]he flooring surface provided by the defendants was unreasonably dangerous, " while he testified in his deposition that he was only able to testify as to causation. Id., at 607-08. The court decided that the expert's statements in the affidavit was " merely supplemental to and an amplification of, and not contradictory to, his deposition testimony." Id., at 618. As a result, they were subject to " the usual legal remedy for inconsistent statements ..." Id., at 617. Thus, the court did not reject the application of the sham affidavit rule. Accordingly, the reasoning of the trial courts that have determined that the sham affidavit rule should be adopted is persuasive, and this court will apply it in the present case.
Here, as to the existence of a defect in the premises, the defendants refer to the plaintiff's deposition testimony in which she testified that the lighting was adequate to illuminate the stairwell, that she could see where she was walking in the moments before the incident, and that her fall was caused by " a slippery surface." (Def.Ex.A, pp. 14-15, 31.) Additionally, the plaintiff also testified in the deposition that she did not observe or notice any unsafe conditions on the stairwell from the date she moved in to the date of the incident. (Def.Ex.A, p. 21.) When the plaintiff was specifically asked whether there was anything else other than the slipperiness of the steps that contributed to her fall or whether she ever had trouble with the height of the steps, the plaintiff answered in the negative. (Def.Ex.A, pp. 43, 111.) Therefore, the defendants have presented evidence that there is not an issue of material fact as to the existence of a defect on the premise. The plaintiff attempts to raise an issue of material fact by submitting her own affidavit, dated May 1, 2012, less than four months after her deposition testimony. In her affidavit, the plaintiff states: " A large part of why I fell was because there was not sufficient lighting in the stairwell ... In addition, what also contributed to my fall is the fact that the stairs are higher from step to step than they should be and this (in conjunction with the low lighting) caused me to misjudge my step ..." (Plaintiff's Exhibit C.) If credited, this statement would raise an issue of fact as to the existence of a premise defect. Unlike the affidavit in DiPietro, however, the contents of the plaintiff's affidavit are not a mere amplification or explanation of her deposition testimony. Rather, the plaintiff's statements in the affidavit directly contradict her prior sworn deposition testimony. Accordingly, pursuant to the sham affidavit rule, the court disregards the plaintiff's affidavit because it directly contradicts her testimony in the sworn deposition.
The defendants also argue that the court should not consider the engineers' report that the plaintiff submitted in support of her contention that the stairway was defective because it is not authenticated and contains inadmissible hearsay. " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). " Therefore, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citations omitted, internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). In this case, the plaintiff failed to either attach an affidavit attesting to the truth and accuracy or to provide certified copies of the experts' report. Consequently, the experts' report is not properly authenticated and is, therefore, inadmissible evidence. Accordingly, the court will not consider the engineers' report in deciding this motion for summary judgment.
Our Supreme Court has stated that summary judgment procedure " is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial." (Internal quotation marks omitted.) Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 261, 532 A.2d 1302 (1987). " While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996). Based on the record before the court, it is clear that in the plaintiff's affidavit and engineers' report, she is attempting to create an issue of fact with respect to the existence of a premise defect to contradict her deposition testimony . Without the court's consideration of the plaintiff's affidavit and the unauthenticated report, however, the plaintiff has not shown that a genuine issue of material fact exist as to what caused her fall. Therefore, she has not provided the court with a sufficient basis to find the existence of a genuine issue of material fact with respect to the existence of a premise defect.
It is important to also note that Practice Book § 17-48 provides: " Should it appear to the satisfaction of the judicial authority at any time that any affidavit is made or presented in bad faith or solely for the purpose of delay, the judicial authority shall forthwith order the offending party to pay to the other party the reasonable expenses which the filing of the affidavit caused that party to incur, including attorneys fees. Any offending party or attorney may be adjudged guilty of contempt, and any offending attorney may also be disciplined by the judicial authority."
Since the court has determined that the plaintiff has not shown that a genuine issue of material fact exists as to this element of her cause of action, it is unnecessary to determine whether an issue of fact exists as to whether the defendants had notice of the alleged defect.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted.