Opinion
CV146048439S
08-01-2016
Stacy Finch, Administratrix of the Estate of Michael Anthony Finch v. Patricia Vancour et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #117
Robin L. Wilson, J.
FACTS
On July 15, 2014, the plaintiff, Stacy Finch, administratrix of the estate of Michael Anthony Finch, filed a two-count complaint sounding in negligence and premises liability respectively against the defendants, Patricia Vancour and Neal Ramadon and Edward Ramadon. In her complaint, the plaintiff alleges the following facts. On or about July 17, 2012, her decedent was involved in a traffic accident at the intersection of Captain Thomas Boulevard and Dyke Street in West Haven, Connecticut. While Vancour attempted to make a left turn onto Captain Thomas Boulevard from Dyke Street, she pulled her vehicle into the path of the decedent's motorcycle, causing the decedent to collide into Vancour's vehicle.
On December 4, 2014, the plaintiff withdrew her cause of action against Vancour. References to the defendants herein are to Neal Ramadon and Edward Ramadon.
At the time of the collision, the defendants owned, managed, and controlled property located at 425 Captain Thomas Boulevard. Their property was in proximity to the intersection where the accident occurred. The plaintiff alleges that the defendants' negligence contributed to causing the collision leading to the decedent's death in that they allowed or permitted shrubbery placed on their property to block the line of sight at the intersection of Dyke Street and Captain Thomas Boulevard. As a result, the defendants created unsafe and dangerous conditions for motorists attempting left turns from Dyke Street on to Captain Thomas Boulevard and they knew or, through the exercise of due care, should have known of the dangerous conditions. The plaintiff further alleges that the defendants were negligent in that they caused and permitted shrubs to be maintained in a condition that made them unsafe and dangerous; failed to erect or maintain proper safeguards or warnings and to otherwise inform the plaintiff's decedent of the dangerous condition; failed to make proper and reasonable inspection; and failed to repair or remedy the dangerous conditions when it was reasonably necessary under the circumstances.
The defendants filed an answer and special defense on September 9, 2014, in which they admitted only to ownership of the property located at 425 Captain Thomas Boulevard. On January 13, 2016, the defendants filed a motion for permission to file a motion for summary judgment and, on January 25, 2016, the defendants filed their motion and memorandum of law in support with exhibits. The plaintiff filed a brief in opposition with exhibits on March 14, 2016. This matter was heard at short calendar on April 18, 2016. This case is scheduled for trial on August 17, 2016.
DISCUSSION
I
SUMMARY JUDGMENT
" [T]he moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " 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." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).
" Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence, " (Internal quotation marks omitted.) United States Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " [T]he rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment . . . [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings . . ." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320-21, 77 A.3d 726 (2013).
" 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), citing Practice Book § 381 [now § 17-46]. " 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). " [B]efore a document may be considered by the court [in connection with] 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 . . . Conn. Code Evid. § 9-1(a), commentary. 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." (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
In the present case, the defendants argue that, as a matter of law, they did not owe the plaintiff's decedent a duty of care and that there is no genuine issue of material fact that they did not have notice of the alleged defective condition on their property and that there is no proximate causation. In support of their motion for summary judgment, the defendants have attached the affidavit of Edward Ramadon, excerpts of Vancour's deposition testimony, and a copy of a traffic study conducted by the West Haven Police Traffic Management Team (traffic study).
Edward Ramadon's affidavit and excerpts of Vancour's deposition testimony were attached to the defendants' motion for permission to file summary judgment (Entry no. 114) and the copy of the traffic study was filed separately (Entry no. 118).
In opposition, the plaintiff argues that the defendants owed her decedent a duty as set out by safety standards regarding the proper distance of shrubbery from a public way and by our Supreme Court's decision in Warren v. Stancliff, 157 Conn. 216, 251 A.2d 74 (1968) (involving landowner's duty of care in slip-and-fall case). The plaintiff further contends that the defendants had actual and constructive notice of the alleged dangerous condition arising from the placement and maintenance of the shrubbery, given that the defendants created the condition, and that the condition had existed for a reasonable length of time such that they should have discovered it. The plaintiff also maintains that there is a genuine issue of material fact as to causation. In support of her opposition, the plaintiff attaches the affidavit of her expert witness, Richard Montefusco, and excerpts of Sergeant Eric Pimer's deposition testimony.
Upon review of the evidence, this court can consider only the affidavits and deposition testimony offered by both parties. The traffic study cannot be considered because it has not been authenticated. The copy attached to the defendants' motion is neither a certified copy nor accompanied by an affidavit attesting that the copy is a true and accurate representation of what the defendants claim it to be. Therefore, only the affidavits and the deposition testimony are properly before this court.
At short calendar, this court questioned the admissibility of the traffic study. The defendants did not offer to authenticate the copy of the traffic study. The defendants explained that it was attached to provide the court with background on the specific circumstances of the present case. The defendants also maintained that they met their burden through the affidavit of Edward Ramadon and Vancour's deposition testimony, without the need of the traffic study.
II
CONSTRUCTION OF PLAINTIFF'S CAUSE OF ACTION
As a threshold matter, this court must determine the gravamen of the plaintiff's cause of action. The defendants make arguments as to duty of care in relation to ordinary negligence and as to breach of duty in relation to premises liability. Moreover, in opposing summary judgment, the plaintiff primarily relies on authority that addresses a property owner's duty of care and breach of that duty in premises liability actions. Also, the plaintiff neither labeled the counts of her complaint nor pleaded individual counts of ordinary negligence or premises liability against the defendants. Her allegations sound part in premises liability (referencing the defendants' ownership and control of the property at issue, creation and maintenance of a dangerous condition on their property, and failure to properly inspect and maintain safe premises and to warn of harmful conditions on the premises) and part in ordinary negligence (detailing the defendants' specific acts of negligence and carelessness and alleging that defendants knew or should or have known of the risk of harm from their acts).
The defendants refer to the duty of care analysis associated with ordinary negligence. Compare Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 47, 58 A.3d 293 (2013) (" Our Supreme Court has stated that under a theory of ordinary negligence, 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 . . . Additionally, [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 of the general nature of that suffered was likely to result from his act or failure to act." [Internal quotation marks omitted.]) with LaFlamme v. Dallessio, 261 Conn. 247, 251-52, 802 A.2d 63 (2002) (" Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property. Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property." [Citation omitted.]).
As to breach, the defendants ground their arguments in lack of notice, which relates to premises liability. See Riccio v. Harbour Village Condominium Assn, Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007) (" It is well established that, in the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it.").
Paragraphs 3 and 4 of the plaintiff's complaint state:
" [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 allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint." (Internal quotation marks omitted.) Stamford v. Ten Rugby Street, LLC, 164 Conn.App. 49, 74, 137 A.3d 781 (2016). See also Young v. MG Cleaning Services, LLC, Superior Court, judicial district of New Haven, Docket No. CV-07-5014650-S, (August 6, 2008, Cosgrove, J.) (" The plaintiff must clearly select the theory or theories upon which he predicates his claim of liability. If he chooses to allege alternate theories of recover he must do so in separate counts"). " [E]ssential allegations may not be supplied by conjecture or remote implication . . . The concept of premises liability . . . is generally understood to include liability for a dangerous condition, which includes, but certainly is not limited to, defects." (Citation omitted; internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, Inc., Superior Court, judicial district of New Haven, Docket No. CV-10-6014745-S (November 9, 2011, Wilson, J.) (52 Conn.L.Rptr. 834, 835-36, ), affd sub nom., Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 58 A.3d 293 (2013).
At the outset of her claim, the plaintiff alleges that the defendants " owned, managed, and controlled" the property on which the shrubbery at issue existed. The plaintiff's theory of liability is grounded in the defendants' failure to exercise due care in the maintenance and inspection of shrubbery on their property or to warn of the risk of harm that the shrubbery posed, which allegedly created a hazard to motorists. These allegations sound in premises liability in that they pertain to a dangerous condition or defect on the defendants' property and to the defendants' responsibility as landowners for their failure to maintain reasonably safe premises and for the dangerous driving conditions therefrom. Furthermore, the specific allegations that the defendants failed to warn of harmful conditions on their property and to inspect and to adequately maintain their property suggest that the defendants owed the decedent a duty of care akin to that owed to invitees. See Gargano v. Azpiri, supra, 110 Conn.App. 502, 508, 955 A.2d 593 (2008) (" [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.]).
Accordingly, a fair reading of the plaintiff's pleadings, in addition to the plaintiff's defense of her claim on summary judgment, indicate that the plaintiff intended to make a claim for premises liability. Cf. Sweeney v. Friends of Hammonasset, supra, 140 Conn.App. 48-49. (" Reading the complaint in its entirety, the allegations of negligence pertain to the alleged failure of the defendants either reasonably to inspect and maintain the defective premises in order to render them reasonably safe or to warn of dangers that the plaintiff, as an invitee of the defendants, could not reasonably be expected to discover. Though these allegations are not inconsistent with a duty under a theory of ordinary negligence, the gravamen of the plaintiff's complaint pertains to the dangerous and unsafe icy conditions of the walking." [Internal quotation marks omitted.]). Therefore, this court construes the plaintiff's claim as one for premises liability and will only address the parties' arguments as they relate to a premises liability claim.
III
NOTICE
" It is well established that, in the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it." (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). " Under Connecticut law, the existence of both actual and constructive notice is a question of fact." Vendrella v. Astriab Family Limited Partnership, 133 Conn.App. 630, 659, 36 A.3d 707 (2012), aff'd, 311 Conn. 301, 87 A.3d 546 (2014). " The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it." Riccio v. Harbour Village Condominium Assn., Inc., supra, 163. " What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in light of the particular circumstances of each case." Pollack v. Gampel, 163 Conn. 462, 469-70, 313 A.2d 73 (1972).
" Under an affirmative act theory of negligence, if the plaintiff alleges that the defendant's conduct created the unsafe condition [on the premises], proof of notice is not necessary . . . That is because when a defendant itself has created a hazardous condition, it safely may be inferred that [the defendant] had knowledge thereof . . . Analysis of the affirmative act rule as it has been applied shows that it permits the inference of actual notice only when the defendant or its employees created an obviously hazardous condition." (Citation omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 122-23, 49 A.3d 951 (2012).
In the present case, the defendants offer the affidavit of Edward Ramadon to support their contention that they had no notice of the alleged dangerous condition on their property. Edward Ramadon avers that prior to the accident at issue in the present case, he was not aware of any problems with the line of sight at the intersection of Dyke Street and Captain Thomas Boulevard. Aff. Edward Ramadon ¶ 14. He further avers that no other claims involving obstruction of motorists' line of sight or landscaping on his property have been made against himself or Neal Ramadon. Id., ¶ 15.
The plaintiff responds that the defendants had actual notice pursuant to the affirmative act theory. She alleges that the defendants permitted shrubbery on their property to block motorists' line of sight at the intersection of Dyke Street and Captain Thomas Boulevard thereby creating a dangerous condition. She notes that the defendants have not produced evidence to rebut that the shrubbery was placed on their property by anyone other than themselves or someone on their behalf. The plaintiff also maintains that the defendants had constructive notice. She contends that the shrubbery existed as a dangerous condition for a length of time during which the defendants should have discovered the condition and remedied it. She notes that the defendants admit to owning the property for over forty years and have not produced evidence to show that the shrubbery was not a part of their property for the term of their ownership or to otherwise dispute the location of the shrubbery or their responsibility for overseeing it.
Although Edward Ramadon's averments support the claim that the defendants did not have notice by their own personal knowledge or by way of complaints from others or of similar prior incidents, the defendants fail to produce evidence to challenge that they had constructive notice. Specifically, the defendants' do not offer evidence to contest that the alleged defective condition existed for such a length of time that they, in the exercise of reasonable care, should have discovered it in time to remedy it. The defendants' assertions as to lack of notice is further put into question given that Edward Ramadon has individually owned the property since 2012, and has jointly owned it with Neal Ramadon for over forty years prior to 2012. Id., ¶ 12-13. Moreover, our appellate authority has established that such inquiries regarding constructive notice should be determined by the specific circumstances of the case and, thus, are necessarily questions of fact for the trier.
As to the affirmative act theory of negligence, the defendants' evidence is insufficient to demonstrate that there is no genuine issue of material fact that they did not create the alleged dangerous condition. In particular, their evidence does not support that they did not plant the shrubbery; that the way in which they planted the shrubbery did not create a dangerous condition; that they maintained the shrubbery in such a way that did not obstruct the intersection; or that they did not allow the shrubbery to grow into an obstruction. Edward Ramadon's affidavit only confirms that he is the owner of the property and that he did not receive notice by way of complaints, lawsuits, or prior incidents similar to the accident at issue in the present case. Our standards are clear in that the moving party carries a heavy burden to produce sufficient evidence that no genuine issue of material fact exists. Because there remain genuine issues of material fact as to actual and constructive notice--specifically, whether the alleged dangerous condition existed for a reasonable length of time and whether the defendants created the alleged dangerous condition--the defendants have not met their burden for summary judgment.
Even if this court construed the plaintiff's cause of action as one for ordinary negligence, the defendants still would not meet their burden on summary judgment. " Our Supreme Court has stated that under a theory of ordinary negligence, 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 . . . Additionally, [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 of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 47, 58 A.3d 293 (2013). " [W]hether the injury is reasonably foreseeable ordinarily gives rise to a question of fact for the finder of fact, and this issue may be decided by the court only if no reasonable fact finder could conclude that the injury was within the foreseeable scope of the risk such that the defendant should have recognized the risk and taken precautions to prevent it . . . In other words, foreseeability 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 easonable disagreement the question is one to be determined by the trier as a matter of fact." (Citation omitted; internal quotation marks omitted.) Ruiz v. Victory Properties, LLC, 315 Conn. 320, 330, 107 A.3d 381 (2015).
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is denied because there remain genuine issues of material fact as to notice.
3. At all times mentioned herein, the defendants Neal Ramadon and Edward Ramadon owned, managed, and controlled the property known as 425 Captain Thomas Boulevard, West Haven, Connecticut, which property was in close proximity to the location of the accident. 4. Said occurrence was due to the negligence and carelessness of the defendants Neal Ramadon and Edward Ramadon in one or more of the following respects: (a) IN THAT they allowed or permitted shrubbery located on their property to block the line of sight at the intersection of Dyke Street and Captain Thomas Boulevard, making it unsafe and dangerous for motorists attempting left hand turns from Dyke Street onto Captain Thomas Boulevard; (b) IN THAT they caused or allowed and permitted said shrubs to be maintained in said condition making it unsafe and dangerous; (c) IN THAT they failed to erect or maintain proper safeguards, warning signs, or failed to otherwise warn the plaintiff of the aforesaid dangerous conditions; (d) IN THAT they failed to make proper and reasonable inspection; (e) IN THAT they failed to repair or remedy said conditions when the same were reasonably necessary under the circumstances.
The defendants argue that there is no evidence to establish that the defendants had knowledge of the potential harm that existed as a result of the placement of shrubbery on their property. They emphasize that they did not receive complaints or other forms of notice regarding the shrubbery as explained in Edward Ramadon's affidavit. Viewing this evidence in the light most favorable to the plaintiff, whether this evidence is sufficient to challenge the contention that the ordinary or reasonable person in the defendants' position would or should have anticipated that motorists could collide at the intersection due to the shrubbery on their property raises a question of fact for the trier given the location of the shrubbery and how long the defendants have owned the property. As a result, the defendants have not offered evidence establishing that a reasonable juror could come to only one conclusion as to the foreseeability of the decedent's injuries from the alleged negligent conduct. Therefore, this court cannot decide, as a matter of law, that the defendants did not owe the decedent a duty of care under a theory of ordinary negligence.