Opinion
CV146026053S
02-17-2016
Beau Ouellette v. Zen Bar et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #125
PETER EMMETT WISE, JUDGE.
I
PROCEDURAL HISTORY
On July 7, 2015, the plaintiff, Beau Ouellette, filed a two-count amended complaint against eight defendants. The plaintiff alleges the following facts. On July 7, 2012, the plaintiff was walking across Farmington Avenue in Plainville, Connecticut, after leaving the defendant establishment, Zen Bar, and was violently struck by a vehicle driven by Jacqueline Hunter. Prior to the accident, Hunter was commuting home after leaving her place of employment, an establishment owned by the codefendants, Hollywood et al. As a result of the accident, the plaintiff sustained serious injuries. In the first count of the complaint, the plaintiff alleges that defendants, Zen Bar, Giancarlo Garvia-Zimmitti d/b/a Zen Bar, Zen Bar Acquisition Co., LLC, and Pavano Properties, LLC, were negligent in directing the plaintiff to park across the street in a designated parking lot, but failed to provide crosswalk or traffic controls, thereby maintaining a hazardous condition. In count two, the plaintiff claims that the codefendants, Hollywood et al., were negligent by allowing " an employee to consume alcoholic and other liquids while working for the defendants" and that the collision and injuries suffered by the plaintiff " were to a substantial degree in consequence of the consumption of alcohol" by Hunter.
For the purposes of this memorandum, " defendants" or " Zen Bar et al." will refer only to the following parties: Zen Bar, Giancarlo Garcia-Zimmitti d/b/a Zen Bar, Zen Bar Acquisition Co., LLC, and Pavano Properties, LLC (the parties submitting motion for summary judgment #125.00).
Jacqueline Hunter is not a party to this action.
On August 27, 2015, the defendants, Zen Bar et al., filed a motion for summary judgment (125.00) and supporting memorandum of law (126.00). On October 20, 2015, the plaintiff filed an opposition to the motion for summary judgment (131.00) and supporting memorandum of law (132.00). The parties presented oral argument on November 9, 2015.
II
DISCUSSION
A. Summary Judgment
" [S]ummary 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " 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 . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id. " Although 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 . . . A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014).
B. Parties' Arguments
In their memorandum, the defendants assert that summary judgment as to count one of the complaint should be granted because they did not owe the plaintiff a duty of care. The defendants also maintain that Hunter's actions were the superseding or proximate cause of the accident. In his opposition, the plaintiff contends that summary judgment is not appropriate because there are genuine issues of material fact regarding whether the defendants owed a duty of care and whether the defendants should have anticipated the harm suffered by the plaintiff.
C. Negligence & Duty
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . [T]he 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." (Internal quotation marks omitted.) Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).
In Conigliaro v. Marriott International, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-60144395-S, (August 29, 2014, Sequino, J.), the court determined that the defendant owed a duty of care when the plaintiff fell while walking from an overflow parking lot. The defendant, a hotel hosting a job fair, had full parking lots and advised parties to park off-site. The plaintiff, an attendee, parked in the lot of an adjacent Target store, and fell when he walked down a path to the hotel. The hotel was aware that people used the Target parking lot as overflow and would have directed overflow parking to that lot. The court concluded that " [d]efendant's negligence in failing to adequately monitor and control its parking situation and maintain reasonably safe pedestrian access from off-site parking was a proximate cause of plaintiff's injury." Id.
" Where a claim against a business enterprise abutting the highway is not based upon an alleged unsafe condition of the highway but rather on a transient dangerous condition generated by the defendant's own business promotional activities, the business proprietor may have a duty to protect its customers from the hazards of having to cross the adjoining highway from the nearest parking area available to them." Mantie v. Inn at Manchester, Inc., Superior Court, judicial district of Tolland, Docket No. CV-95-0058009-S (January 9, 1997, Hammer, J.T.R.) (18 Conn. L. Rptr. 438, 444, *31-32), citing Mulraney v. Auletto's Catering, 293 N.J.Super. 315, 680 A.2d 793, 796 (N.J.Super.App.Div. 1996).
D. Analysis
First Factor--Proximate Cause
" Proximate cause is [a]n actual cause that is a substantial factor in the resulting harm . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . . Foreseeability is likewise considered when the defendant claims there has been no negligence because an unforeseeable intentional tort, force of nature, or criminal event superseded the tortious conduct." (Citation omitted; internal quotation marks omitted.) Mirjavadi v. Vakilzadeh, 310 Conn. 176, 192, 74 A.3d 1278 (2013). " [T]o be within the scope of the risk, the harm actually suffered must be of the same general type as that which makes the defendant's conduct negligent in the first instance." (Emphasis omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 609, 662 A.2d 753 (1995).
In the present case, the plaintiff alleges that the defendants were " directing patrons to park across the street from the Zen Bar in a designated parking lot." In his deposition, the plaintiff states that a bouncer and a folding sign directed him to park across the street. The deposition of a third party, Heather Patterson, also included statements that Zen Bar had a " lot is full" sign outside by the front door. It is within the scope of foreseeable risk that customers directed to park in an overflow lot across the street in order to patronize the defendants' establishment may be at risk to traffic on the street. " A duty to use care may arise 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." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). An ordinary person in the defendants' position, knowing and directing customers to park across the street, should anticipate possible harm resulting from traffic accidents likely resulting from customers crossing, such as in the present instance. Hence, it was a foreseeable risk for the plaintiff to be exposed to potential hazardous traffic when he was directed to park across the street.
Second Factor--Public Policy
" With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another . . . In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Citations omitted; internal quotation marks omitted.) Cannizzaro v. Marinyak, 312 Conn. 361, 366-67, 93 A.3d 584 (2014). " [I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). In the present case, all four factors support a duty of care owed to the plaintiff.
Under the first factor of a public policy analysis, it is logical that participants engaged in this activity expect a duty. Businesses owe a duty of care to patrons utilizing their parking lots. It is a logical inference for this duty to also include overflow parking lots, especially when businesses direct patrons to park in the overflow lots. See, e.g., Lopes v. Walgreens Eastern Co., Superior Court, judicial district of New Haven, Docket No. CV-09-6004995-S, (February 7, 2012, Wilson, J.) (" it seems likely that business invitees reasonably would expect, at minimum, to have safe passage between the store and their automobiles and be protected from stray vehicles, regardless of whether they are driven by negligent or criminal drivers").
The second factor, encouraging participation in the activity, also strongly favors an imposition of duty. " As a matter of public policy, it is desirable to promote business activity in Connecticut cities, and to encourage citizens to support local enterprises. The availability of parking has a direct impact on this. By extension, it is, therefore, in the interest of public policy to encourage parking lot owners to conduct business. Although imposing a duty of reasonable care on lot owners would increase their cost of doing business, which likely would be passed on to customers, it is unlikely to dampen business." Monk v. Temple George Associates, LLC, supra, 273 Conn. 119. Businesses receive an economic benefit by providing overflow parking to customers; therefore, businesses should owe a duty to customers who utilize such lots.
The third factor, avoidance of increased litigation, does not hinder the imposition of a duty. " The purpose of the imposition of a duty of care in this case is to protect customers by encouraging businesses to take reasonable care to decrease the likelihood of injuries on their premises. Therefore, if imposing a duty of care, in fact, has that result, litigation is unlikely to increase but may even decrease as less injuries would occur." Lopes v. Walgreens Eastern Co., supra, Superior Court, Docket No. CV-09-6004995-S.
Lastly, the fourth factor, decisions of other jurisdictions, further support the imposition of a duty. In Mulraney v. Auletto's Catering, 293 N.J.Super. 315, 680 A.2d 793, 796 (N.J.Super.App.Div.), cert. denied, 147 N.J. 263, 686 A.2d 764 (1996), the New Jersey appellate court reversed the trial court's granting of summary judgment after the appellate court found that a duty may be imposed on a business to safeguard its customers from adjacent parking areas. In Mulraney, the plaintiff attended the defendant's bridal fair. Finding no parking available in the parking lot, the plaintiff parked in an area owned by a third party, across an adjoining county highway, and was killed while crossing the highway. The court agreed with the plaintiff's claim that " [defendant] negligently failed to take any measures to protect its customers from a transient dangerous condition created by [defendant's] own business operation, specifically, the conduct of a large function which it knew or should have known would involve some patrons parking on the opposite side of a poorly illuminated county highway that had no crossing for pedestrians." Id., 797. The court identified that " [a] business proprietor has a duty, at least under some circumstances, to undertake reasonable safeguards to protect its customers from the dangers posed by crossing an adjoining highway to an area the proprietor knows or should know its customers will use for parking." Id., 796.
There are, however, limitations to the imposition of a duty. In Hirabayashi v. North Main Bar-B-Q, Inc., 977 S.W.2d 704 (Tex.App. 1998), cert. denied, the Court of Appeals of Texas did not impose a duty of care on a restaurant owner when a patron parked in a vacant lot and was struck by a car while walking across the street. Because " [the defendant] did not own or operate the vacant lot across the street or suggest to patrons that the lot could be used as overflow parking, [the defendant] had no duty to [the plaintiff]." Id., 708.
In summary, under the public policy analysis in determining a duty of care, imposing a duty on a business to care for patrons parked in an overflow parking lot is not void for public policy. After reviewing the four factors, this court concludes that imposing a duty of care on the defendants under the present circumstances is not inconsistent with public policy.
III
CONCLUSION
" The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012). The court finds that as a matter of law the defendants owed a duty of reasonable care to the plaintiff. The court further finds that there are genuine issues of material fact with regard to whether defendants failed to exercise reasonable care in directing patrons across the street to the overflow parking lot. Since the defendants would not be entitled to judgment as a matter of law, the defendants are not entitled to summary judgment. For the foregoing reasons, the court denies the defendants' motion for summary judgment.
SO ORDERED.