Opinion
No. CV06-5001931S
October 2, 2007
MEMORANDUM OF DECISION RE Motion for Summary Judgment, #114
In this slip and fall action, the defendant seeks summary judgment on the grounds that the plaintiff has failed to establish notice; and there was an on-going storm at the time of the plaintiff's fall. The plaintiff opposes the motion for summary judgment, arguing that there are genuine issues of fact in dispute as to the notice claim; and the nature, extent and duration of defect upon which the plaintiff. For reasons more fully explained in this memorandum, the court denies the defendant's motion for summary judgment, #114.
The plaintiff alleges that he fell in an employee parking lot which was owned by the defendant. He further claims that his fall resulted from frozen ice of which the defendant had or should have had notice. In support of his claim, the plaintiff submits, inter alia, an affidavit from a co-worker which attests that the co-worker saw a "sheet of ice where [the plaintiff] fell . . . The sheet of ice covered from between a 6' x 10' area to a 10' x 10' area. It was upon this ice that [the plaintiff] fell . . . For at least a period of five (5) days, possibly more, the ice where [the plaintiff] fell was present." Affidavit of John Saffo, Jr. dated August 31, 2007.
The defendant argues that the co-worker affidavit is not consistent with the other evidence in the case, including weather reports, and the plaintiff's deposition testimony. Accordingly, the defendant argues that the co-worker's testimony is not credible. Even if the court finds the testimony credible, the defendant argues that it is not legally liable because the plaintiff fell during an on-going storm.
"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. 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 the absence of any genuine issue of material fact and that the party, is, therefore, entitled to judgment as a matter of law . . ." (Citations omitted; internal quotation marks omitted.) Greenwich Hospital v. Gavin, 265 Conn. 511, 518-19, 829 A.2d 810 (2003).
I.
In deposition testimony the plaintiff testified that he did not know whether there was any ice in the area upon which he fell prior to the day of his fall. Although, the defendant relies upon this deposition testimony, it acknowledges that a co-worker of the plaintiff attests that the ice upon which the plaintiff fell was present for at least five days prior to the fall.
The law regarding summary judgments requires that this court view the evidence in the light most favorable to the plaintiff. When viewed in a light most favorable to the plaintiff, the court finds that the plaintiff has placed the issue of notice in dispute.
Although the defendant invites this court to make a determination that the statement of the co-worker is not credible, deciding credibility is not the role of the court when considering a motion for summary judgment. "`[Q]uestions which revolve around credibility are particularly ill-suited for the summary judgment procedure.' Ferrucci v. S.N.E.T., Superior Court, judicial district of New Haven, Docket No. CV 03 476161 (August 17, 2005, Lopez, J.) `It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised.' Barasso v. Rear Still Hill Road, 81 Conn.App. 798, 806, 842 A.2d 1134 (2004)." Chase v. Tusia, Superior Court, judicial district of Windham at Willimantic, Docket No. CV 04400354 (September 28, 2006, Martin, J.) "The court cannot `substitute its own judgment concerning the credibility of [witnesses] for that of the [trier of facts] . . .' Bogart v. Tucker, 164 Conn. 277, 282, 320 A.2d 803 (1973). `Issues of credibility are within the exclusive realm of the trier of fact, and, therefore, cannot be resolved by summary judgment. Battistoni v. Weather King Products, 41 Conn.App. 555, 564, [ 676 A.2d 890] (1996).' White v. Thornton Oil Corp, Superior Court, judicial district of New Haven, Docket No. CV 01 0455245 (January 7, 2004, Arnold, J.) [36 Conn. L. Rptr. 279]"; Brown v. Cardosa, Superior Court, judicial district of New London at Norwich, Docket No. 04-4100861, (May 16, 2006, Hurley, J.T.R.).
Regardless of the apparent strength or weakness of the nonmoving party's case, the court may not properly grant a motion for summary judgment except in the absence of evidence. "`A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather only if the case is legally dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment.' Mitchell v. Mitchell, 756 A.2d 179 (R.I. 2000) cited in Wing v. Arvin Indus., Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-05-4010122 S (April 28, 2006, Skolnick, J.T.R.)." Mexico Construction, LLC. v. Thompson, Superior Court, judicial district of Milford, Docket No. CV 075002988 (August 7, 2007, Robinson, R., J.). Accordingly, the defendant is not entitled to summary judgment on the issue of notice, because the plaintiff has presented sufficient evidence to place that issue in dispute.
II.
The plaintiff testified in his deposition that it had been snowing for about fifteen to twenty minutes when he fell. Therefore, the defendant next argues that it is entitled to summary judgment because the plaintiff fell during an on-going storm. However, the defendant is not entitled to judgment on this grounds because the plaintiff alleges and has presented evidence that the defect upon which he fell existed prior to the snow fall.
In Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.24 240 (1989), the Supreme Court held 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." Whether or not a storm is ongoing, however, is only one factual predicate to a determination that the defendant is entitled to judgment. The plaintiff may still prevail if a trier of fact determines that a reasonable time had not passed since the end of the storm, but that an "unusual circumstance" existed. Id. Such an "unusual circumstance" could be the pre-existence of a defect.
Further, because the plaintiff concedes that it was snowing when he fell, he argues that the real issue in dispute for the trier of fact is whether or not the ice upon which he fell existed prior to commencement of the snow-fall. This evidence is properly considered by the trier of fact in determining whether or not the plaintiff is entitled to a verdict. "The rule in Kraus `does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of . . . whether a plaintiff's injury has resulted from new ice or old ice and when the effects of separate storms begin to converge.' Kraus v. Newton, supra. 211 Conn. 198." Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 347, 710 A.2d 788 (1998).
III.
The plaintiff has presented sufficient evidence to defeat the defendant's motion for summary judgment because the issue of whether or not the defendant had notice requires a credibility determination; and the issue of whether or not the alleged defect was caused by an on-going storm or a preceding event requires a factual finding. For these reasons, the court denies the defendant's motion for summary judgment, #114.