Opinion
NNHCV156054841S
08-25-2017
Elaina Parcesepe v. Bunch Properties, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT PILGRIM HARBOR ASSOCIATION'S MOTION FOR SUMMARY JUDGMENT (128.00)
James W. Abrams, Judge.
On April 28, 2015, the plaintiff, Elaina Parcesepe, filed a complaint against several defendants stemming from injuries she allegedly suffered in a January 12, 2014 fall at the condominium unit where she resided. Pilgrim Harbor Association (hereinafter " Pilgrim"), the sole remaining defendant, filed a Motion for Summary Judgment dated September 19, 2016. The plaintiff filed an Objection on October 13, 2016 and the defendant filed a Reply dated May 30, 2017. The plaintiff filed a Supplemental Memorandum dated June 1, 2017 and the parties presented oral argument before the court on June 2, 2017.
The issue before the court is whether Pilgrim's Motion for Summary Judgment should be granted on the ground that no genuine issue of material fact exists as to whether Pilgrim had notice of the specific defect which allegedly caused the plaintiff's fall.
I
FACTS
The plaintiff alleges that late in the night of January 11, 2014 or early in the morning of January 12, 2014, she sustained personal injuries after slipping and falling on accumulate water in the bathroom of the condominium unit where she resided. The plaintiff further alleges that the accumulated water was caused by a leaky roof, that Pilgrim owed her a duty of care to maintain the premises, and that Pilgrim breached this duty by failing to properly maintain the roof. The plaintiff further alleges that Pilgrim failed to warn her of the roof's condition, failed to clear accumulated snow and ice from the roof and that the roof was in disrepair. She alleges that the specific defect causing her fall was the defective roof, which the defendant Pilgrim allegedly planned to fix prior to the incident.
II
DISCUSSION OF LAW
" Summary judgment is a method of resolving litigation when 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." (citation omitted) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of facts . . . To satisfy this 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 material fact." Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" In deciding summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
In the present case, the defendant Pilgrim argues that summary judgment is appropriate because there is no genuine issue of material fact that it had no notice of the specific defect that the plaintiff alleges caused her to fall. Pilgrim argues that the specific defect that caused the plaintiff's fall was the water on the floor, rather than a defect in the roof that may have permitted water to leak into the bathroom. Because the plaintiff alleges that the water on the floor was present for only a short time before the plaintiff slipped, the defendant did not, and could not, have had any notice of its existence.
In response, the plaintiff argues that the specific defect was the defective roof, which caused the water to leak and accumulate on the bathroom floor. The plaintiff further argues that the defendant had an affirmative duty to maintain the " water-tight integrity of all roofs" as outlined in the Pilgrim Harbor's Owner's Association's " Blue Book" Rules and Regulations. The plaintiff then alleges that because there is a genuine issue of material fact as to whether the defendant had notice of the defect in the roof prior to the plaintiff's fall, summary judgment should not enter. In support of this argument, the plaintiff claims that Pilgrim planned to fix the roof prior to the incident and that it was aware of prior water damage to the plaintiff's condo.
In the context of negligence actions based on the defective condition of the defendant's premises, " [t]here can be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it." Cruz v. Drezek, 175 Conn. 230, 235, 397 A.2d 1335 (1978). " In order to recover under our current law, the plaintiff was required to prove that the defendant had actual or constructive notice of the specific defect that caused the plaintiff's injuries." Ricco v. Harbour Village Condominium Association, Inc., 281 Conn. 160, 162, 914 A.2d 529 (2007). " On the question of notice the trier's consideration must be confined to the defendant's knowledge and realization of the specified condition causing the injury, and such knowledge cannot be found to exist from a knowledge of general or overall conditions obtaining on the premises." (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn.App. 223, 228, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002).
In a motion for summary judgment by a defendant condominium association in response to a plaintiff's complaint of a leaky heat-o-later on the roof, the court held that a genuine issue of material fact existed as to whether the defendant had notice of the defect. Cormier v. Spring Lake Co., LLC, Judicial District of New Britain, Docket No. CV 03-0522871, (Burke, J., February 4, 2005). The facts in Cormier are roughly similar to the present case: the plaintiff complained of water dripping from a ceiling fan/heat-o-later unit as a result of a leak in the roof, which caused her to slip and fall on a puddle of water on her bathroom floor. The defendant condominium association filed a motion for summary judgment on the grounds that they had no duty and no notice. The plaintiff claimed that she had notified the manager of the condominium complex about the leaking heat-o-later at least once prior to the incident. The court held that because the plaintiff had raised a genuine issue of material fact--whether her complaint to the manager of the condominium complex constituted notice--summary judgment was not appropriate. Though the plaintiff in the present case did not complain to Pilgrim prior to the incident, there remains a question of fact as to whether Pilgrim had notice of the leaky roof. The specific defect in Cormier, supra, was the leaky heat-o-later unit that was supposed to be inspected by the condo association, as was the roof in this case. The court drew no distinction between the leaky heat-o-later and the accumulation of water which it caused and the court sees no reason to draw such a distinction in this case. They are one and the same.
In Capella v. Daddio, Judicial District of New Haven, Docket No. CV 06-5007123S, (Bellis, J., June 12, 2008), a plaintiff was injured when he fell off a homeowner's roof while cleaning the gutters. The homeowners moved for summary judgment because they claimed that they were not aware of the slippery nature of the roof's shingles, and were not aware the plaintiff was going on the roof. Testimony from the defendant's mother indicated that several years earlier someone had fallen off the roof and the defendants were aware of it. The court found this fact sufficient to raise a genuine issue of material fact regarding whether the defendant-homeowners had notice of the defective roof and their motion for summary judgment was denied. By way of analogy, if Pilgrim had made the inspections from " the bottom up" including the roof as it claimed it did monthly, an issue of fact exists as to whether it would have been aware of the roof's defect.
The court rejects the defendant's claim that the defect at issue is the puddle of water rather than the leaky roof: " The notice, whether actual or constructive, must be notice of the very defect that occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002). The question of whether the defendant breached its duty of care to the plaintiff to maintain the roof and whether it had notice of the condition of the roof is appropriately resolved by the trier of fact rather than through summary judgment.
III
CONCLUSION
For the foregoing reasons, the defendant Pilgrim's Motion for Summary Judgment is denied.