Opinion
No. FST CV 06-5001333 S
October 19, 2007
MEMORANDUM OF DECISION
In their complaint the plaintiffs allege that plaintiff Joan Rapp ("Rapp"), a real estate agent, was injured when, on March 2, 2006, she slipped and fell on the rear steps of a residence located at 39 Brookridge Drive in Greenwich owned by defendant Margaret W. Casey ("Casey"). Rapp claims that she was at the residence pursuant to an invitation to attend a broker's "open house" being conducted by Casey's listing broker, defendant Shore and Country Properties, Inc. ("Shore and County"). The first count of the complaint alleges that Casey was the owner and in control of the premises at the time of the injury and that Casey failed to remove snow and ice from the back steps of the residence, failed to warn invitees of the dangerous conditions on the back steps and failed to prevent invitees from using the steps. The third count repeats the same allegations of negligence, but claims that defendant Shore and Country was in control of the premises at the time of the injury. The second and fourth counts are loss of consortium claims brought by Rapp's husband against Casey and Town and Country respectively.
At issue are a motion for summary judgment dated July 24, 2007 filed by Shore and Country and a motion for summary judgment dated July 30, 2007 filed by Casey. Both defendants claim to be entitled to summary judgment on the basis of the ongoing storm doctrine as set forth in Kraus v. Newton, 211 Conn. 191 (1989). In addition Casey claims that at the time of the open house she had relinquished control of the premises to Shore and Country and therefore cannot be held responsible for the conditions which caused the plaintiffs' injuries.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. 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)." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).
"[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 . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006).
THE "ONGOING STORM" DOCTRINE
In Kraus, supra, the Supreme Court found that the trial court had properly instructed the jury that a property owner is entitled to wait until the end of an ice and sleet storm before taking action to remove an accumulation of ice from steps. The court stated the basis for its decision:
We believe that in the absence of unusual circumstances, 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 a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical. Our decision, however, does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended . . . 211 Conn. at 197-98.
On the issue of whether the storm of March 2, 2006 was, in fact, ongoing, Shore and Country submitted the following materials:
1. An affidavit signed by a meteorologist stating that he had examined the records of weather observers in Darien, Bridgeport and New Haven for the period February 27, 2006 to March 2, 2006 and that he concluded that there was no measurable precipitation prior to March 2, 2006 and that approximately 5 inches of snow fell in the vicinity of Greenwich on March 2, 2006 and that "on March 2, 2006, measurable snow fall began to accumulate in the mid morning through early afternoon . . ."
2. An affidavit signed by Russell Pruner, an owner of Shore and Country, stating that Shore and Country operated an open house at 39 Brookridge Drive on March 2, 2006 from 10:30 a.m. until 12:30 p.m. and that snow began after the open house had begun.
3. An affidavit signed by Nancy Healy, another owner of Shore and Country, stating that it began to flurry shortly before the open house began at 10:00 a.m. and that the snowfall increased and began more substantial by 10:30 a.m. and that it continued to snow until sometime after she received a report that someone had fallen on the back steps at 11:00 a.m.
Casey submitted the following material on the same issue:
1. An extract from the deposition of plaintiff Joan Rapp stating that when she arrived at 39 Brookridge Drive at approximately 10:30 a.m. there was a small accumulation of snow on the ground; that she entered the house through the front porch and left after viewing the interior of the residence; that she left the house and found that her car had been blocked in by another vehicle; that she returned to the residence and attempted to enter through the rear stairs and entrance, but slipped and fell on accumulated snow; that she doesn't remember that it was snowing when she fell.
2. Reports from the National Oceanic and Atmospheric Administration, National Climatic Data Center stating that in southern Connecticut on March 2, 2006 four to six inches of snow fell from 9:00 a.m. and tapered off between 6:00 p.m. and 9:00 p.m. and stating that no snow had fallen in the twenty days prior to the March 2, 2006 storm.
In opposition to the motion for summary judgment, the plaintiff submitted that following materials relevant to the "ongoing storm" issue:
1. An affidavit signed by Rapp's husband stating that when his wife left their home in Greenwich at approximately 10:00 a.m. it was not snowing, although it had snowed earlier that morning leaving an accumulation of snow on the ground; that at the time he received a call notifying him of his wife's injuries at approximately 11:00 a.m. it had not snowed since her departure an hour earlier.
2. An affidavit signed by David Ayres, a real estate agent who attended the open house. Ayres states that there was snow on the ground when he arrived at the open house at 10:00 a.m., but that it was not snowing at that time: he entered the house through the rear door having successfully ascended steps with an accumulation on snow on them.
3. The deposition of Nancy Healy, another real estate agent, in which she states that during the open house it was "spritzing" — an on again off again type of snowfall.
4. The deposition of Russell Pruner, in which he states that it was not snowing when the open house began at 10:00 a.m. and that it did not start to snow again until after 11:00 a.m.
In addition to disputing the applicability of the "ongoing storm" doctrine, the plaintiffs point out that they have made other allegations of negligence which are not address in the defendants' motion for summary judgment. These include claims that the defendants failed to warn those who were expected to attend the open house of the danger of using the rear steps and failed to take action to prevent the use of the rear steps although they knew that it was appropriate to do so.
The court finds that there are at least two issues of material fact which preclude the granting of the defendants' motions for summary judgment on the basis of the "ongoing storm" doctrine. Most obviously, there is conflicting evidence as to whether the snowfall was, in fact, ongoing at the time Rapp sustained her injuries. Even if the snowfall had ceased, it would be up to a jury to determine, whether, under the circumstances, a reasonable time for taking action to remove the snow had passed.
Secondly, an issue of material fact arises as to whether the fact that the defendants were hosting an "open house" and expected a number of real estate agents, unfamiliar with the property, to accept the invitation to view the residence constituted "an unusual circumstance" which would negate the applicability of the "ongoing storm" doctrine under Kraus v. Newton, supra, at 197.
CONTROL OF THE PREMISES
Defendant, Casey, has moved for summary judgment on the additional grounds that, during the open house, she had turned over possession and control of her property to Shore and Country. She argues that under the circumstances she cannot be held responsible merely on the basis of her ownership of the property. In support of that claim Casey attached to her motion the following materials:
1. Casey's affidavit stating that prior to the open house of March 2, 2006, she entered into a listing agreement with Shore and Country; that she gave access to her home to Shore and Country to allow it to conduct the open house, and that she was not present at her home during the open house or at the time of the plaintiff's injuries. Attached to the affidavit is a copy of the multiple listing agreement between Casey and Shore and Country. That agreement is silent as to the issue of possession and control of the plaintiff's home during the term of the listing and does not refer to holding of an open house at the home.
2. Copies of requests for admissions served by Casey on Shore and Country and Shore and Country's responses. In its responses, Shore and Country admits the existence of the listing agreement, admits that it was permitted "general access" to Casey's home to show it to brokers and to conduct the open house on March 2, 2006, admits that it is the "usual and customary business practice" for the seller to leave the premises during an open house, but denying that Casey was not permitted to remain at her home during the open house.
The plaintiffs did not submit affidavits or other documents bearing on the issue of Casey's possession and control. However, the plaintiffs argue that the materials submitted by Casey fail to demonstrate that there is a material issue of fact with respect to the question of possession and control.
It is undoubtedly true that mere ownership does not confer premises liability. Liability is imposed upon the person or persons who are in a position to exercise possession and control. Farlow v. Andrews Corp., 154 Conn. 220, 225 (1966); LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002) Casey has not called the court's attention to any cases in which an owner who resides in a single-family residence has been held not to exercise possession and control during a brief absence from the premises.
However, Casey relies on the reasoning of the court in a Michigan Court of Appeals case, Anderson v. Wiegand, 223 Mich.App. 549 (1997). In that case homeowners cleared ice and snow from their property on a Friday and left the state for the weekend. There was no evidence that sand or salt was applied to the driveway or walkways on the property by the homeowners. The property was listed for sale with a real estate agency who, having been entrusted with the keys to the premises, conducted a public open house on Sunday afternoon. No snow fell between Friday and Sunday. During the open house a prospective buyer slipped on ice which had formed on a walkway on the property and was injured. The trial court granted summary judgment to both the homeowners and the real estate agency finding that in clearing the snow and ice on Friday the homeowners had acted reasonably as a matter of law.
The Court of Appeals found that a duty was owned to business invitees to not only clear snow and ice once, but also to keep the premises safe from ice that formed as a result of melting and re-freezing of snow and ice. The court rejected the claim that the homeowners could be held responsible for the negligence of the real estate agent finding that the agent was an independent contractor whose duties to the homeowner did not include maintenance of the property. The court found that homeowners were not in possession or control or the premises at the time of the accident, but that the real estate agent was. The court affirmed the trial court summary judgment in favor of the homeowners, but reversed as to the liability of the real estate agency. The court reasoned that: "Because the homeowners effectively ceded possession and control of the premises, albeit for a brief time, to the real estate agency, the law is satisfied to look to the party actually in control for liability for injuries to third parties." 223 Mich.App. at 556.
In the present case the evidence establishes that defendant Casey, did not leave town overnight, but merely left her home for a period which included the open house. The court cannot find, as a matter of law, that Casey's absence from her residence at the time of the plaintiff's injuries insulates her from responsibility for the plaintiff's injuries. The issue of whether either Casey or Shore and Country were in sole and exclusive possession and control of the subject premises at the time of the injury or whether possession and control were shared presents an issue of fact which cannot be resolved on a motion for summary judgment. "[T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question . . . Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question [of control], then the issue should properly go to the jury for its determination." (Internal quotation marks omitted.) Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 755, 773-74 (2005).
For the reasons set forth above, the defendants' motions for summary judgment are denied.