Opinion
No. X04-CV 00-0103740 S
October 25, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This is one of two cases arising out of a serious slip and fall injury the plaintiff sustained, leaving her disabled. She fell due to debris collected in or near a storm drain in the road near her condominium unit at Lakeside Condominiums in Ledyard, Connecticut on November 27, 1998. The defendant Condominium Association seeks summary judgment on all counts of the complaint directed toward it, claiming that it owed Mrs. Reardon no duty of care, that it had no notice of the alleged defect, that it did not create either a negligent or absolute nuisance and that because the plaintiff cannot establish these claims as a matter of law, her husband's derivative claims for loss of consortium must also fail. For the reasons set forth in detail below, the court concludes that there remain material issues of fact that must be resolved with respect to all of the defendant's claims. For the reasons set forth in detail below, the court denies the motion for summary judgment on all counts.
II DISCUSSION A. Legal Standard
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." LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002); QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 351, 773 A.2d 906 (2001); Alvarez v. New Haven Register, Inc., 249 Conn. 709, 714, 735 A.2d 306 (1999); Practice Book Sec. 17-49.
The party moving for summary judgment bears the burden of proving the absence of a genuine dispute as to any material fact; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. "Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [T]he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn.App. 265, 269-70, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996). "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." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 373 n. 7, 746 A.2d 753 (2000); D.H.R. Construction Company v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980).
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000); Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999); Forte v. Citicorp Mortgage, Inc., 66 Conn.App. 475, 784 A.2d 1024 (2001). In Connecticut, "[a] trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, [the trier of fact] could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." (Internal quotation marks omitted.) Colombo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 64, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Summary judgment is particularly "ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
B. Negligence Count — Duty of Care and Constructive Notice
Defendant Lakeside contends that it did not breach any duty to the plaintiff because it did not have actual or constructive notice of the alleged defect. See LaFaive v. DiLoreto, 2 Conn.App. 58, 60, 476 A.2d 626 (1984); see also Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966). "Either type of notice must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." LaFaive v. DiLoreto, supra, 60. Further, it claims that because the plaintiff cannot specifically identify what caused her fall, it owes her no duty.
The plaintiff makes no claim that the defendant Lakeside had actual notice of the accumulation of debris which allegedly caused the plaintiff to fall, so the issue raised is whether it either created the condition which caused the injury or whether it had constructive notice of the condition.
Lakeside relies upon the holding of Monahan v. Montgomery, 153 Conn. 386, 216 A.2d 824 (1966) that the law does not permit the plaintiff to guess or speculate as to what caused her fall. The court cannot agree with these contentions in the context of the pleadings and factual submissions of this case. Defendant's formulation of the issues raised in the negligent count is far too narrow, given the facts that have been pleaded and supported by the submissions in the plaintiff's opposition to this motion. Facts, which are relevant to the resolution of the issues raised by defendant, follow.
It is undisputed that the plaintiff fell on land for which Lakeside Condominium Association #1 has responsibility on behalf of all condominium unit owners, including the plaintiff. She and her husband had owned a unit for approximately twenty years. Mrs. Reardon on November 27, 1998 followed her normal routine of walking her dog after she returned home from work. She both alleges in her complaint and states in the affidavit attached to the opposition to the motion for summary judgment that when she stepped off the curb, she stepped on some rocks, pebbles, sand and other accumulated debris in a catch basin at that point. She fell as a result, she states, of stepping on the material in question. She was injured during her fall, which caused her to tumble down an incline located at that point on the property.
Exhibit One to plaintiff's memorandum in opposition to motion for summary judgment, Affidavit of Roberta Reardon, dated July 30, 2004.
While admittedly some of the deposition testimony and the plaintiff's report to the medical treaters the evening of her accident raise issues of credibility, resolution of the impact of allegedly inconsistent statements is not the court's task in the present motion, but reserved for the trier of fact, since there are material issues of fact in dispute.
The complaint and the affidavit filed by the plaintiff's expert point to the improper installation and maintenance of the storm drain at the accident site as contributing to the accumulation of material, which caused Mrs. Reardon to fall. The factual claims made, both in the allegations of count one and the affidavit submissions, are that the defective condition of the storm drain permitted the material to accumulate over a considerable period of time. Such debris, in the expert's opinion, could not have been swept into the location in which it was located after one or two recent heavy rainstorms. As a result because of its presence there for a long period of time, the expert concludes that the defendant did not properly and seasonally inspect the area and which debris the landscaping company did not properly remove. Because the storm drain's lip was not flush with the roadway, but improperly elevated, the material built up over time and was not flushed away in the ordinary course of events nor removed by the landscaping company during seasonal cleanup. It is plaintiff's claim either the defendant created the condition, which caused the injury, or that it had existed for such a period of time that defendant had constructive notice of it.
Defendant's submissions on the weather several days before the event therefore serve to raise additional material issues of fact in this case for resolution by the trier of fact.
Exhibit C, affidavit of Richard Twomey, Engineer. As to defendant's challenge to the use of the affidavit submission by an undisclosed expert, the court notes that there is no order in this case requiring the disclosure of the expert at this time. There is no requirement that an expert be disclosed prior to his providing expert testimony in opposition to a summary judgment motion, as the timing of such motions is in the control of the defendants.
Lakeside, as the entity charged with the care and maintenance of the common elements, is responsible for such elements, including yearly debris removal from the roads. This is so despite the fact that some of those duties, such as snow removal, sanding and seasonal removal of sand and other debris were delegated by it to Buttermore Landscaping Company, also a defendant in the case consolidated with the present case.
While certain deposition testimony and other factual material appended to defendants' motion for summary judgment paint a somewhat different picture of the facts, it bears repeating that it is not the court's function in the context of a motion for summary judgment, to adjudicate the competing views of the material facts at issue, but to merely note that they exist. Viewing the facts in the light most favorable to the non-movant plaintiff Mrs. Reardon, she has identified the cause of her fall and described a defect which is causally linked to that fall.
"Whether or not the defect had existed for a length of time sufficient to constitute constructive notice is a question of fact . . . and unless the period of tine is such that but one conclusion could be found, its determination should be left to the trier . . . The defendant can be charged with having constructive notice of a defect when it is of such a nature and duration that a reasonable inspection would have disclosed the risk." (Citation omitted) Ormsby v. Frankel, 54 Conn.App. 98, 110-11, 734 A.2d 575 (1999), aff'd, 255 Conn. 670, 768 A.2d 441. Such is the essence of the plaintiffs' claims and they have presented sufficient facts to survive a motion for summary judgment since central and material questions of fact remain to be resolved after a full hearing.
In addition to the issue of constructive notice, the plaintiff has also raised factual issues concerning the creation of this defect. Her allegations and affidavits, broadly viewed also allege an affirmative act of negligence, i.e., that the defendant's conduct created the unsafe condition. In such circumstances, proof of notice is not necessary. Holody v. First National Supermarkets, Inc., 18 Conn.App. 553, 556, 559 A.2d 723 (1989). The latter may be provable in the case before the court. The cases upon which defendant relies are therefore inapposite. At best, the court concludes that the defendant has established there are issues of material fact in dispute, which the trier of fact will appropriately determine after a trial on the merits. For these reasons, the motion for summary judgment as to count one and the derivative count two, claiming loss of consortium based on the facts alleged in count one is denied.
The superior court cases, which are cited by the defendant all involved factual situations where the plaintiff produced no evidence concerning the claimed defect or in which the conditions causing the injury had been present for a very short period of time, insufficient to charge a defendant with constructive notice, not the case in the present case before the court.
C. Nuisance, both negligent and absolute
In counts five and seven, the plaintiff alleges that the defendant created and maintained a negligent and absolute nuisance, respectively. These causes of action are based on the same factual claims reviewed above. Counts six and eight are derivative loss of consortium claims based on the nuisance counts. Nuisances may be characterized as public or private. "A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land" (Internal quotations omitted; internal citations omitted.) Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 515 (1939). A nuisance is said to be absolute where the creator intends, the act that creates the condition, and the creator of an absolute nuisance may be strictly liable. DeLahunta v. Waterbury, 134 Conn. 630, 633-34, 59 A.2d 800 (1948). A negligent nuisance occurs where a creator fails to exercise due care in bringing about the condition. "[T]he only practical distinction between an absolute nuisance and one grounded in negligence is that contributory negligence is not a defense to the former, but may be as to the latter." Kostyal v. Cass, 163 Conn. 92, 98-99, 302 A.2d 121 (1972).
Defendant Lakeside argues that because the negligent nuisance alleged was not causally connected to an unreasonable interference with the plaintiff's use and enjoyment of her condominium, her claims must fail as a matter of law. The court cannot agree. In Pestey v. Cushman, 259 Conn. 345, 358, 788 A.2d 496 (2002) the Connecticut Supreme Court adopted Section 822 of the Restatement (Second) of Torts. It held that "a plaintiff must prove that: (1) there was an invasion of the plaintiff's use and enjoyment of his or her property; (2) the defendant's conduct was the proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless . . . showing unreasonableness is an essential element of a private nuisance cause of action based on negligence or recklessness."
The Pestey court, at page 361, continued its analysis and stated that "Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable."
Given the allegations of the complaint and the affidavits, despite defendant Lakeside's urging, the court cannot conclude as a matter of law that there could be no determination of a negligent nuisance in this case. Whether the elements necessary to establish a claim of nuisance have been proven is a question of fact which is ordinarily determined by the trier of fact. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978). Defendant has presented nothing to counter this general rule and the court hereby denies the motion for summary judgment as to count five and its derivative loss of consortium claim as set forth in count six.
The two superior court cases Defendant cites are no longer instructive in light of the court's holding in Pestey v. Cushman and its discussion of the legal differences between a defendant's unreasonable conduct and unreasonable interference with the use of a plaintiff's property. In addition, neither analyzes why a condominium owner's undivided property interest with others would not be sufficient, if the facts warranted, for a nuisance to be established. A condominium owner has a legally cognizable property interest in the common elements as well as in his or her individual condominium. The court is aware of no case, other than these two involving condominiums, that holds as a matter of law a claim of nuisance may not be asserted where there is more than one owner of the impacted property. There would be no logical reason to restrict a valid nuisance claim in such manner.
Counts seven and eight set forth claims based on absolute nuisance. Such a nuisance claim is akin to a negligent nuisance with the addition that the conduct be intentional. Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990), overruled on in part on other grounds, Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003). "If the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable." Id., p. 348. The various affidavits of the plaintiffs as well as their experts and the allegations of the pleadings raise this claim. Those submissions, if credited, raise material questions of fact as to whether or not defendant Lakeside by its intentional conduct in improperly installing the storm drain in question brought about the condition creating the nuisance. It is not the result, the pebbles, stones and other debris near the drain which caused damage to the plaintiff which the defendant is required to intend, for no defendant would do so under ordinary circumstances, but the act of installing the drain in its defective condition. For all of the foregoing reasons, the motion for summary judgment is denied.
BY THE COURT
BARBARA M. QUINN, Judge