Opinion
FSTCV156024633S
08-05-2016
Deborah Kovach v. The Norwalk Hospital Association et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT OF THE NORWALK HOSPITAL ASSOCIATION AND NORWALK HOSPITAL
Donna Nelson Heller, J.
The plaintiff Deborah Kovach commenced this premises liability action, returnable March 3, 2015, against the defendants The Norwalk Hospital Association (the Association), Norwalk Hospital (the Hospital), the City of Norwalk (the City) and The Connecticut Light and Power Company (CL& P) to recover monetary damages for injuries she sustained on the night of January 26, 2013 when she fell while walking her dog. In her six-count amended complaint (#117.00), filed on July 21, 2015, the plaintiff asserts claims for negligence against the Association (first count); negligence against the Hospital (second count); negligence against the City (third count); negligence against CL& P (fourth count); nuisance against the City (fifth count); and statutory negligence against the City (sixth count). The City filed an answer to the amended complaint on December 24, 2015 (#144.00). The Association and the Hospital (collectively, the Hospital defendants) filed an answer with special defenses to the complaint on January 13, 2016 (#146.00). CL& P filed an answer with special defense on January 19, 2016 (#150.00). The plaintiff replied to CL& P's special defense on July 28, 2016 (#173.00).
The plaintiff has not filed a reply to the special defenses of the Hospital defendants. On July 14, 2016, the Hospital defendants filed a motion for nonsuit for the plaintiff's failure to reply to their special defenses (#170.00).
The Hospital defendants filed a motion for summary judgment with a supporting memorandum of law on January 20, 2016 (#151.00; #152.00). The plaintiff filed a memorandum of law in opposition to the Hospital defendants' motion for summary judgment on February 16, 2016 (#160.00). The Hospital defendants filed a reply memorandum in further support of their motion for summary judgment on March 11, 2016 (#168.00). The City and CL& P also moved for summary judgment (#140.00; #154.00).
The court entered orders on July 11, 2016 granting the City's motion for summary judgment (#140.01) and denying CL& P's motion for summary judgment (#154.01).
The defendants' motions for summary judgment were before the court on the March 14, 2016 short calendar. The court heard argument from counsel for the parties and reserved decision at that time. By order entered on July 11, 2016, the court denied the Hospital defendants' motion for summary judgment and stated that this articulation would follow (#151 .01).
Discovery objections (#163.00) and a motion for protective order (#156.00; #159.00) were also on the short calendar and have been addressed separately.
I
The following material facts are not in dispute: The plaintiff resided on Rhodonolia Park, a residential street in Norwalk, Connecticut, at the time of the incident that gave rise to this litigation. On the night of January 26, 2013, the plaintiff took her dog out for a walk on Rhodonolia Park so that it could relieve itself. During their walk, the plaintiff and her dog entered onto a grassy area owned by the Hospital, located between the paved roadway of Rhodonolia Park and a chain link fence that borders the Hospital's parking lot. The plaintiff claims that the area was dark; it was nighttime, and a nearby street light was not functioning. The plaintiff's dog wrapped its leash around a tree as it explored the grassy area. When the plaintiff attempted to untangle the dog's leash, her foot hit something--believed by the plaintiff to be a tree root. The plaintiff fell and sustained injuries in the fall.
In the first and second counts of the amended complaint, sounding in negligence, the plaintiff alleges the following against the Hospital defendants: The Hospital defendants owned, operated, created, and maintained the area where she fell. The area was open to pedestrians and designated for dog walking. The Hospital defendants invited people to walk there, with or without their dogs. The Hospital defendants knew or should have known upon reasonable inspection or supervision that the dangerous condition of the area should have been remedied. The Hospital defendants, by and through their agents, authorized agents, servants, and/or employees, were negligent in that they failed to maintain the walkway in the area where the plaintiff fell in a reasonably safe condition; they failed to repair the lights, thereby making the area dangerous and defective; they failed to block off the trip hazards, including the tree roots; they failed to properly warn of the danger presented by the non-functioning lights and the tree roots; they improperly continued to keep the area open for use despite the non-functioning lights and the tree roots; and they failed to properly and promptly repair the lights.
The Hospital defendants admit that the Hospital is the owner and in possession and control of the area where the plaintiff fell. They deny or plead insufficient knowledge to form a belief as to the truth or falsity of the remaining allegations of the counts of the amended complaint that are directed to them. The Hospital defendants assert special defenses of immunity from liability pursuant to the recreational use act, General Statutes § 52-557f, et seq., and contributory negligence.
II
Practice Book § 17-49 provides that summary judgment " shall be rendered forthwith if the 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." Practice Book § 17-49. " 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.) Connecticut Medical Insurance Co. v. Kulikowski, 286 Conn. 1, 5, 942 A.2d 334 (2008).
" The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). " When a motion for summary judgment is supported by affidavits and other documents, an adverse party . . . must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." (Citation omitted.) Bartha v. Waterbury House Wrecking Co., Inc., 190 Conn. 8, 11-12, 459 A.2d 115 (1983).
" It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). " While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Roe #1 v. Boy Scouts of America Corp., 147 Conn.App. 622, 640, 84 A.3d 443 (2014).
III
The Hospital defendants seek summary judgment in their favor on two grounds: (i) that they have immunity pursuant to § 52-557g of the recreational use act because the plaintiff was on the Hospital's property for a recreational purpose, and (ii) that they did not owe a duty to the plaintiff because she was on the Hospital's property as a licensee. In response, the plaintiff argues that she did not enter onto the Hospital's property for a recreational purpose. According to the plaintiff, the type of dog walking in which she was engaged was not a recreational activity within the meaning of § 52-557f(4) of the recreational use act. She also claims that she was on the Hospital's property as an invitee, not as a licensee. Alternatively, she contends that a genuine issue of material fact exists as to whether she was a licensee or invitee, and the Hospital defendants owed her a duty regardless.
The court will discuss each of these arguments below, turning first to the Hospital defendants' claim of immunity under General Statutes § 52-557g.
A
Subsection (a) of General Statutes § 52-557g provides, that " [e]xcept as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes." (Footnote added.) General Statutes § 52-557g(a). Under subsection (b) of § 52-557g, " [e]xcept as provided in section 52-557h, an owner of land who, either directly or indirectly, invites or permits without charge, rent, fee or other commercial service any person to use the land, or part thereof, for recreational purposes does not thereby: (1) Make any representation that the premises are safe for any purpose; (2) confer upon the person who enters or uses the land for recreational purposes the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of the owner." General Statutes § 52-557g(b). The Hospital defendants claim that they are entitled to recreational use immunity because (i) the plaintiff admitted to " recreating" at her deposition and in her objection (#116.00) to the City's prior motion to dismiss (#105.00), and (ii) dog walking on private property held open for public use is universally recognized as a recreational activity.
Section 52-557h provides that " [n]othing in sections 52-557f to 52-557i, inclusive, limits in any way the liability of any owner of land which otherwise exists: (1) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; (2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section."
1
The Hospital defendants contend that the plaintiff's statement at her deposition that she was " recreating" at the time of her fall, like the argument of her attorney that she was " recreating, " as opposed to " traveling, " in her objection to the City's previous motion to dismiss, is a judicial admission that she was engaged in a recreational activity, thus entitling them to immunity under General Statutes § 52-557g and, accordingly, summary judgment in their favor. The court does not agree.
" For a factual allegation to be held to be a judicial admission, the fact admitted should be one within the speaker's particular knowledge and one about which the speaker is not likely to be mistaken. A party's testimony should be deemed a judicial admission only as to those facts that are peculiarly within his own knowledge and as to which he could not be [mistaken . . .] A conclusive judicial admission, to be binding, must be one of fact and not a conclusion or an expression of opinion. Courts require the statement relied upon as a binding admission to be clear, deliberate and unequivocal . . . Judicial admissions are defined as deliberate, clear, unequivocal statements by a party about a concrete fact within that party's knowledge." (Citations omitted; internal quotation marks omitted.) Mamudovski v. BIC Corp., 78 Conn.App. 715, 728-29, 829 A.2d 47, cert. granted, 266 Conn. 915, 833 A.2d 467 (2003), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004).
A determination that dog walking is a recreational activity within the meaning of General Statutes § 52-557f(4) is a legal conclusion, not a question of fact. Thus, the plaintiff's deposition testimony to the effect that she was outside with her dog to " recreate" on the night in question is not a judicial admission that she was walking her dog with a recreational purpose as contemplated by the statute.
The plaintiff's deposition testimony cited in the Hospital defendants' argument cannot be considered so deliberate, clear, and unequivocal as to constitute a judicial admission. See Kovach Dep., October 28, 2015, 159:8-11 (" Well, I mean, I agree with that sentence. I don't know if I would necessarily use that word recreate, but since it was used I have to agree with it. I'm not going to disagree with it").
Similarly, her attorney's use of the word " recreating" in the objection to the City's motion to dismiss does not establish as a matter of undisputed fact that the plaintiff was walking her dog with a recreational purpose at the time she was injured. It is clear from the context that counsel was distinguishing the plaintiff's activity from conduct that would be considered " traveling" under the defective' highway statute, General Statutes § 13a-149. Accordingly, the court finds that neither the use of the word " recreate" in the plaintiff's deposition testimony nor the use of the word " recreating" in her objection to the City's motion to dismiss constitutes a judicial admission for purposes of determining whether the Hospital defendants are immune from liability under General Statutes § 52-557g.
2
The Hospital defendants next argue that the plaintiff was walking her dog on the Hospital's property for a recreational purpose when she fell; thus, they are entitled to immunity under General Statutes § 52-557g. " Recreational purpose" is defined in General Statutes § 52-557f(4), which provides that " '[r]ecreational purpose' includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning, bicycling and viewing or enjoying historical, archaeological, scenic or scientific sites." General Statutes § 52-557f(4). Although dog walking is not an activity that is specifically identified in § 52-557f(4), its omission is not determinative; the definition of " recreational purpose" in subsection (4) of § 52-557f is " simply a nonexclusive list of leisure activities, [that] was originally drawn from a model act promulgated by the Council of State Governments." (Citation omitted.) Scrapchansky v. Plainfield, 226 Conn. 446, 456, 627 A.2d 1329 (1993), abrogated by on other grounds, Conway v. Wilton, 238 Conn. 653, 680 A.2d 242 (1996). As our Supreme Court explained in Scrapchansky, " the enumerated list serves only to denote a variety of activities, some of which are rather unique and not ordinarily characterized as recreational, that the General Assembly legislated should be regarded as recreational for purposes of the act. The list was not intended to exclude sports, such as baseball, that are universally recognized as recreational." Id. The court concluded that " the list of activities enumerated in § 52-557f(4) is not exclusive and is not limited to those activities listed. Recreational activities naturally arise from the desires and preferences of the person who is enticed away from the troubles and toil of the workaday world and who is drawn to the outdoors to partake of an activity that is pleasant for its own sake, " (Internal quotation marks omitted.) Id. at 457. See DiMaggio v. Fassett Properties, L.P., Superior Court, judicial district of New Haven, Docket No. CV-02-454534-S, (September 10, 2002, Blue, J.) (33 Conn.L.Rptr. 98, ) (although power parachuting not specifically listed as a recreational activity in § 52-557f(4), defendant entitled to immunity pursuant to § 52-557g).
The question of whether dog walking is an activity that is undertaken with a recreational purpose within the meaning of General Statutes § 52-557f(4) appears to present an issue of first impression in this state. In other jurisdictions that have recreational use immunity statutes, however, some courts have treated dog walking as a recreational activity under the applicable statutes with little discussion and, apparently, without objection. See Amberger-Warren v. City of Piedmont, 143 Cal.App.4th 1074, 1079, 49 Cal.Rptr.3d 631(2006) (path in question designed and used for recreational purpose--" i.e., bringing a dog to an unleashed area of a dog park, a form of recreation for both dog and walker" --thus city held immune from liability under California recreational trail immunity statute, Cal. Gov't Code § 831.4); Scott v. City of Santa Monica, Docket No. B256651, (Cal.Ct.App. Sept. 30, 2015), review denied (Dec. 16, 2015) (applying California recreational trail immunity statute and noting that plaintiff was engaged in a recreational activity--" i.e., walking his dog on the path" --when he was injured on unpaved path in public park); Schlesinger v. City of Portland, 200 Or.App. 593, 595-96, 116 P.3d 239 (2005) (plaintiff injured while walking her dog on path in public park; city was immune from liability under Oregon Public Use of Lands Act, Or. Rev. Statutes § 105.682)).
The Texas recreational use immunity statute expressly includes " on-leash and off-leash walking of dogs" in the definition of " recreation"; Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(O); but there do not appear to be any reported cases discussing the Texas statute as it relates to dog walking.
A New York appellate court took a different approach in Drake v. Sagbolt, LLC, 112 A.D.3d 1132, 977 N.Y.S.2d 131 (2013), where it found that the claim of a plaintiff who fell on an icy walkway while walking her dogs one evening in late January was not barred by General Obligations Law § 9-103(1)(a), which grants special immunity to landowners when individuals use their property for specified recreational activities, including hiking and training dogs, because the plaintiff was not hiking or training her dogs when she fell. In Drake, the reason why the plaintiff was walking her dogs that night was dispositive of whether the relatively more narrow New York statute would apply to preclude the plaintiff's claim.
In Dobrocke v. City of Columbia Falls, 2000 MT 179, 300 Mont. 348, 8 P.3d 71 (2000), overruled on other grounds, Roberts v. Nickey, 2002 MT 37, 308 Mont. 335, 43 P.3d 263 (2002), another action brought by a person who fell while walking her dogs on a January evening, the Supreme Court of Montana also considered the reason why the plaintiff was walking her dogs on city property in reversing the lower court's decision granting summary judgment in favor of the city under the Montana recreational use act, Mont. Stat. § 70-16-302. The court concluded that " [w]hile we agree that in some circumstances walking could be considered a recreational purpose, we cannot agree that walking to and from ones home in a residential area of a city is the type of 'recreational purpose' contemplated by [the statute]." Id. at 366.
The court finds the trial court's analysis in DiMaggio v. Fassett Properties, L.P., supra, Superior Court, Docket No. CV-02-454534-S,, instructive in determining whether the plaintiff was engaged in an activity with a recreational purpose in this case. In ruling on a motion for summary judgment, the court in DiMaggio followed Scrapchansky and decided that power parachuting--an activity that was not listed in General Statutes § 52-557f(4)--was a recreational activity, and thus the defendant was entitled to immunity pursuant to General Statutes § 52-557g. The court explained that " [w]hen the status of a nonlisted activity is considered, the question is not whether that activity resembles a particular listed activity in its physical form but whether it resembles the various listed activities in terms of function ." (Emphasis in original.) Id. The court concluded that " [t]he dispositive fact is that the function of 'power parachuting' is similar to the function of all of the 'recreational purposes' enumerated in the statute. It is a 'leisure' activity that is 'pleasant for its own sake.'" (Emphasis in original.) Id.
Following Scrapchansky and DiMaggio, this court concludes that dog walking may be--and at times certainly is--a " leisure activity" that is " pleasant for its own sake." For example, spending an afternoon hiking with a dog through the woods, or taking a long stroll with a dog around a local park, would be an activity undertaken with a recreational purpose. The court is reluctant, however, to pronounce dog walking to be a recreational activity in and of itself, irrespective of the circumstances under which such dog walking takes place, particularly where our Supreme Court has found the intrinsic pleasure of a particular activity to be dispositive of whether the activity has a recreational purpose.
In Rintelman v. Boys & Girls Club of Greater Milwaukee, Inc., 2005 WI.App. 246, 288 Wis.2d 394, 707 N.W.2d 897 (2005), review denied, 2006 WI 23, 289 Wis.2d 11, 712 N.W.2d 35 (2006), the Court of Appeals of Wisconsin undertook a similar analysis in finding that a volunteer chaperone of an educational retreat was not engaged in a recreational activity within the meaning of the Wisconsin recreational use immunity statute; Wis.Stat. § 895.52(2)(a); when she fell while walking from one building to a different building on the camp grounds to use the shower and bathroom facilities. The court identified some of " the considerations pertinent to a determination of whether something is [a] recreational activity under the statute . . . [as] the intrinsic nature of the activity, the purpose of the activity, the consequences of the activity, and the intent of the user." (Citation omitted; internal quotation marks omitted.) Id. at 406-07. It observed that " [w]alking may or may not be a recreational activity under the statute, depending on the circumstances." (Citation omitted; internal quotation marks omitted.) Id. at 408. Distinguishing such walking as that undertaken for exercise, or in the nature of a hike, or as a stroll through the woods to enjoy the scenery, from the plaintiff's " utilitarian" walking, the court found that the plaintiff was not engaged in a recreational activity when she walked from one building to another. Id. at 413. See Urban v. Grasser, 2001 WI 63, 243 Wis.2d 673, 685, 627 N.W.2d 511 (2001) (suggesting court should consider activity connected to walk in determining whether walk is recreational activity under the statute).
It is undisputed that the plaintiff tripped and fell on the night of January 26, 2013 while she was walking her dog so that the dog could relieve itself. According to the plaintiff, the area was dark because a nearby street light was not working. Viewing the evidence in the light most favorable to the plaintiff, the non-moving party, as the court must in deciding a motion for summary judgment, the court finds nothing to suggest that the plaintiff was " enticed away from the troubles and toil of the workaday world and . . . drawn to the outdoors to partake of an activity that is pleasant for its own sake"; Scrapchansky v. Plainfield, supra, 226 Conn. at 457; when she took her dog out for a walk on a late January night so that it could relieve itself in the dark. Accordingly, the Hospital defendants are not entitled to immunity pursuant to General Statutes § 52-557g.
B
The Hospital defendants also argue that they are entitled to summary judgment in their favor because they did not owe a duty of care to the plaintiff. They claim that the plaintiff was a licensee when she walked on the Hospital's property with her dog, citing the plaintiff's deposition testimony that she was on the Hospital's property for personal reasons--to walk her dog so that it could relieve itself; that she did not seek permission from the Hospital defendants to be there or otherwise notify them of her presence; and that she was not invited onto the Hospital's property. Based on these facts, the Hospital defendants contend that the plaintiff, as a licensee, was required to take the Hospital's property as she found it and assume the risk of the dangers arising from its condition.
In response, the plaintiff maintains that a genuine issue of material fact exists as to whether she was an invitee or a licensee on the Hospital's property. The plaintiff notes that the Hospital defendants have admitted that they knew members of the public used the Hospital's property, and they did nothing to prevent the public's access to and use of the property. She points out that the Hospital defendants posted a sign asking dog walkers to clean up after their dogs--they did not post a sign prohibiting the public from entering onto the Hospital's property. According to the plaintiff, by posting the sign the Hospital defendants acknowledged the public's presence on the Hospital's property and granted permission to the public to use the property. The plaintiff believed, as she testified at her deposition, that she was permitted to enter upon the grassy area owned by the Hospital to walk her dog so that it could relieve itself, based on the posted sign and her observation of other people walking their dogs there. She contends that the sign was an invitation to members of the public to continue using the Hospital's property to walk their dogs.
" The status of an entrant on another's land, be it a trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on the landowner's property." (Citation omitted.) Salaman v. Waterbury, 246 Conn. 298, 304-05, 717 A.2d 161 (1998). " The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land to enter the land or remain on the land. Although an invitation in itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee." (Citation omitted.) Corcoran v. Jacovino, 161 Conn. 462, 465-66, 290 A.2d 225 (1971).
" A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public . . . A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." (Citation omitted; internal quotation marks omitted.) Id. at 465-66. " [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." (Citation omitted; internal quotation marks omitted.) Gargano v. Azpiri, 110 Conn.App. 502, 508, 955 A.2d 593 (2008).
" A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission . . . The duty that a landowner owes to a licensee . . . does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he [or she] finds them . . . If the licensor actually or constructively knows of the licensee's presence on the premises, however, the licensor must use reasonable care both to refrain from actively subjecting him [or her] of dangerous conditions which the possessor knows of but which he [or she] cannot reasonably assume that the licensee knows of or by reasonable use of his [or her] faculties would observe." (Citation omitted; internal quotation marks omitted.) Salaman v. Waterbury, supra, 246 Conn. at 305.
" Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact . . . Where, however, the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented." (Citation omitted; internal quotation marks omitted.) Gargano v. Azpiri, supra, 110 Conn.App. at 506. A genuine issue of material fact exists as to whether the plaintiff was a licensee or an invitee on the Hospital's property when she tripped and fell on the grassy area while walking her dog. Although the plaintiff testified at her deposition that she believed she was permitted to walk on the Hospital's property with her dog so that it could relieve itself, the fact that the Hospital defendants installed a dog waste sign on the property, thus acknowledging that the grassy area where the plaintiff fell was being used by members of the public to walk their dogs, raises a question as to whether the public was invited to use the Hospital's property for this purpose. Accordingly, the plaintiff's status as an entrant on the Hospital's property--whether she was an invitee or a licensee--and the duty that the Hospital defendants owed to her cannot be decided on a motion for summary judgment.
IV
For the reasons set forth above, the motion for summary judgment of The Norwalk Hospital Association and the Norwalk Hospital (#151.00) is denied.