Opinion
No. CV03-0483717-S
March 16, 2005
MEMORANDUM OF DECISION RE: MOTIONS FOR SUMMARY JUDGMENT #109 AND #116
The plaintiff has instituted this action against the defendants The Ledges Association, Inc. and Margolis-Barkon Realty Company alleging that she suffered personal injuries on December 5, 2002 when she fell on premises which were under the control of those defendants. Basically the plaintiff alleges that the parking area of the condominium in which she resided was dangerous and defective due to the accumulation of ice which was the result of the negligence of the defendants.
The defendants have moved for summary judgment on the basis of the holding of the Connecticut Supreme Court in the case of Kraus v. Newton, 211 Conn. 191 (1989). In Kraus, the court held that "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 the storm and a reasonable time thereafter before removing ice and snow from outside walks and steps."
The standards for granting a motion for summary judgment are well established. The pleadings, affidavits and other proof submitted must show that there is no issue as to material facts and that the moving party is entitled to judgment as a matter of law. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990). While the party seeking summary judgment has the burden of showing the absence of any issue of material fact, the party opposing the motion must show an evidentiary basis to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Education, 254 Conn. 205, 209 (2000). The existence of an issue of fact must be demonstrated by counter affidavits or concrete evidence. Pion v. Southern Connecticut Telephone, 44 Conn.App. 657, 663 (1997).
In support of this motion, the defendants have attached deposition testimony of the plaintiff, the signed statement of the plaintiff, the affidavit of the defendants' weather expert along with the meteorological documents which he reviewed in drawing certain conclusions. From the supporting documents filed by the defendants there appears to be no question but that the plaintiff fell during an ongoing snowstorm or within a reasonable time thereafter so as to bring the holding in Kraus into play.
However, the rule in Kraus "does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determination of . . . whether a plaintiff's injury has resulted from new ice or old ice [and] when the effects of separate storms begin to converge." Kraus v. Newton, supra, 211 Conn. 198.
It is the claim of the plaintiff that her fall was due to an icy condition that preexisted the snowfall of December 5, 2002. In support of her claim she submits her affidavit along with that of her weather expert, Phillip Falconer, C.C.M.
The defendants argue that there is no evidentiary basis for her claim that she fell on "old ice" as opposed to the snow which was coming down on December 5, 2002. However, in her deposition, her statement and her affidavit the plaintiff maintains that she fell on ice which was under the layer of snow which fell on December 5, 2002.
Furthermore, in his affidavit, Mr. Falconer states that based upon his review of the relevant weather related documents, snow fell on November 27, 2002 and further precipitation fell on November 29, 2002 and December 3, 2002 and that any ice spots which developed during or after these storms would have survived sub-freezing weather that occurred from December 3, 2002 through December 5, 2002.
Mr. Falconer also states that there could have been a melting and re-freezing situation producing patches of ice in the area where the plaintiff fell.
In the court's view, the testimony, statement and affidavit of the plaintiff, along with the affidavit of Phillip Falconer present on evidentiary foundations for a factual determination of whether the plaintiff's injury resulted from new or old ice. See Cook v. O'Brien Properties, Inc., 48 Conn.App. 339, 347-48 (1998).
Therefore, since there exists an issue of material fact, the defendants' motion for summary judgment is denied.
In a separate motion, the defendant Preferred Properties Landscaping, Inc. has also moved for summary judgment raising the same issues. For the reasons set forth in this memorandum of decision, the motion for summary judgment of Preferred Properties Landscaping, Inc. is also denied.
Thompson, J.