Opinion
CV156047707
08-01-2016
Lashanna Cromwell v. Pier 1 Imports (U.S.), Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
William J. Wenzel, J.
This action comes before the court on the motion filed by Defendants SCA Commercial Property Maintenance, LLC (" SCA") and Urstadt Biddle Properties, Inc. (" Urstadt") for summary judgment on Counts Two and Three of the complaint. This action was filed by plaintiff alleging that she slipped and fell on December 31, 2012, while on property owned by Urstadt and maintained by SCA. Plaintiff alleges negligence on the part of these defendants by allowing snow and ice to accumulate on the property in question after they knew or should have known of the slippery and dangerous conditions of the property. The sole basis for the motion for summary judgment is defendants' contention that there is no genuine dispute as to a dispositive fact, namely that at the time of the fall, there was an ongoing storm and hence, no duty was owed.
Standard of Review
Section 17-49 of the Connecticut Practice Book states that summary judgment shall be rendered when " the pleadings, affidavits and other proof submitted shows that there is no genuine issue as to any material fact." Of course, not every factual dispute will be material nor should it preclude the entry of summary judgment. " A material fact is a fact that will make a difference in the result of the case." Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004). Once the movant has established the absence of any genuine dispute as to a set of facts which clearly entitles him to judgment, regardless of whatever else might be in dispute, he is entitled to summary judgment. The burden on the moving party is a heavy one. This court must view the evidence in a light most favorable to the non moving party; Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007); and the movant must present sufficient factual evidence to demonstrate the absence of any genuine dispute. Barasso, supra, 81 Conn.App. at 803. If the moving party has not met this burden, the failure of the non moving party to submit opposing evidence does not entitle the movant to judgment. Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).
Once the moving party has met this burden, however, the party opposing the motion cannot simply rest on its allegations or denials; it must " provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009).
Discussion
Counts Two and Three of the complaint assert claims for premises liability against the two moving defendants. The counts allege that defendants were negligent in allowing snow and ice to accumulate on the stairwell leading into and out of the retail store operated by Pier One Imports, Inc. The basis of the motion is that no duty is owed to clear accumulating snow and ice until the storm depositing same has ceased and the undisputed evidence shows that the storm in question was still underway.
In terms of the legal premise, defendants' contention is basically sound. " Connecticut law requires a landowner to use reasonable care to maintain the premises in a reasonably safe condition." Sinert v. Olympia & York Dev. Co., 38 Conn.App. 844, 850, 664 A.2d 791 (1995). In Kraus v. Newtown, 211 Conn. 191, 197-98, 558 A.2d 240 (1989), the Connecticut Supreme Court elaborated on this duty in the context of a winter storm: " [I]n the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps."
As far as the factual basis of the motion, defendants utilize the deposition testimony of the plaintiff and the plaintiff's mother who was traveling with her on that day. That testimony, which comes from excerpts of their respective depositions, establishes that before they entered the store in question and then as they left, it was actively snowing. The court should note that these statements were presented by selected pages apparently copied from the deposition transcripts. The copied pages do not include the signature page, the certification page or any other form of certification or affidavit attesting to the authenticity of the transcripts.
In opposition to this evidence, plaintiff offered a commercially produced weather report for the specific area where the retail store is located. The report addressed the weather conditions and precipitation for the period before and during the accident in question. The report called into question the defendants' contention that the storm was still in progress. The report purported to be prepared by someone with expertise in the area of weather data. The report however was not authenticated in any way nor was it supported by any affidavit or support as to the credentials of the author of the report.
In their reply brief, defendants strenuously object to the court's consideration of the weather report submitted by plaintiff. The objection is that such report is or contains hearsay and is offered without any affidavit setting out the author's qualifications. The defendants' objections in this regard appear to be well taken and the court cannot consider the weather report submitted in opposition to the motion for summary judgment.
Notwithstanding the absence of this material, the court determines that summary judgment should not enter. There are two reasons for this. First, the court ultimately determines that it should not consider the deposition testimony submitted by defendants as the basis of their motion. As the court noted earlier, such testimony was not certified or authenticated in any way. The court recognizes that it frequently admits and relies upon uncertified deposition testimony in considering motions, including motions for summary judgment, and this is usually on the basis that no objection has been made. In the press of business before counsel and the courts, the court typically trusts counsel to determine when some formalities should be raised. While the plaintiff did not object to such testimony on that basis here, the court nonetheless exercises its discretion to exclude consideration of uncertified deposition testimony. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (1995). The basis for the exercise of this discretion is that defendants having so vigorously objecting on the basis of the rule, Practice Book § 17-46, should not profit from their own failure to follow the same rule.
The court also notes that under the teachings of Kraus, the delay allowed property owners to remove accumulating snow and ice is " in the absence of unusual circumstances." There has been no showing here as to such absence.
For these reasons, the motion for summary judgment is denied.