Opinion
No. 5001056
November 6, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #127
FACTS
The plaintiff, James Wrighten, filed a two-count complaint on May 18, 2006, alleging that the defendants, Rapid Car Wash, Inc. (Rapid) and Levine Eckstadt, LLC (the LLC), negligently maintained their business parking lot and that the dangerous condition of the parking lot is a public nuisance. Specifically, the plaintiff alleges that while he was crossing the parking lot owned by the LLC, and leased to Rapid, he was hit by a car and that the cause of the collision was the unsafe condition of the parking lot. The plaintiff further alleges that the unsafe condition was created when the defendants failed to configure the parking lot in such a way as to ensure safe pedestrian traffic through the use of appropriate signs, crossing walks, facility organization and inspection policies, which both manifests negligence and resulted in a public nuisance.
On May 29, 2007, the defendants moved for summary judgment as to the plaintiff's second count in public nuisance. In support of their motion, the defendants filed a memorandum of law, an affidavit of Noah Levine, and excerpted copies of uncertified deposition transcripts. The plaintiff then moved for and received a timely extension to reply to the motion for summary judgment, and subsequently filed his memorandum of law in opposition to defendants' motion for summary judgment on July 3, 2007. The plaintiff submitted his affidavit, copies of excerpts of uncertified depositions, and a copy of an unauthenticated, uncertified lease agreement.
DISCUSSION
"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 . . ." (Citation omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). In seeking summary judgment, "[t]he courts are in entire agreement that the moving party . . . 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 . . . 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 . . . 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]." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The defendants argue that the court should grant summary judgment as to the second count because there are no issues of material fact and are entitled to judgment as a matter of law on the ground that the plaintiff was not exercising a public right at the time of the alleged incident, which they argue is an essential element of a public nuisance claim. With respect to the absence of any material fact being in dispute, the defendants aver that the plaintiff does not dispute the only two dispositive facts in this matter: that the plaintiff was a business invitee of Rapid at the time of the incident and that the parking lot where the incident took place was owned by the LLC. In support of their motion, the defendants submit the following evidence: (1) an uncertified copy of the deposition of Sandra Levine; (2) an uncertified copy of the deposition of Noah Levine; (3) an uncertified copy of the deposition of the plaintiff; and (4) a signed and sworn affidavit of Noah Levine. Consequently, the defendants argue that the plaintiff cannot meet the criteria of a public nuisance claim as a matter of law because he was not exercising a public right at the time of his injury.
The plaintiff counters by arguing that the motion for summary judgment should be denied because there are material facts in dispute and the defendants are not entitled to judgment as a matter of law on the ground that privately owned parking lots that are held open to the public and contain a dangerous condition that poses a threat to the public can constitute a public nuisance. Regarding the dispute of material facts, the plaintiff posits that the legal status of the parking lot is a question properly submitted to a jury because it is a shared parking lot that serves several different businesses. In support of its position, the defendants submits the following evidence: (1) an uncertified copy of the deposition of Sandra Levine; (2) a copy of an unexecuted, unauthenticated, and uncertified lease between the LLC and a business enjoying a non-exclusive right of way over the parking lot at issue; (3) an uncertified copy of the deposition of Jose Urena; (4) a signed and sworn affidavit of the plaintiff; and (5) an uncertified copy of the deposition of the plaintiff. Moreover, the plaintiff argues that there is case law to support a finding that even a privately owned parking lot that contains a dangerous condition can constitute a public nuisance.
In order to prevail on a claim of nuisance, a plaintiff must demonstrate that: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." Elliot v. Waterbury, 245 Conn. 385, 420, 715 A.2d 27 (1998). Furthermore, in the case of a public nuisance, "the plaintiff has the additional burden associated with . . . proving that the nuisance interferes with a right common to the general public." Id. at 421. The test for determining whether a nuisance is public "is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights." Higgins v. Connecticut Light Power Co., 129 Conn. 606, 611, 30 A.2d 388 (1943). Indeed, "it has been said that the interference with a public right is the sine qua non of a cause of action for public nuisance." Brown v. Shawmut National Corporation, Superior Court, judicial district of New Haven, Docket No. CV 96 0383347 (July 30, 1996, Corradino, J.), quoting 58 Am.Jur.2d, Nuisances § 40 (1989).
In the present case, the plaintiff was not exercising a right common to the public at the time he entered the privately owned parking lot of the LLC for the purpose of patronizing Rapid. "One who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance." Webel v. Yale University, 125 Conn. 515, 524-25, 7 A.2d 215 (1939); see also Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Sup. 355, 357, 238 A.2d 431 (1967) ("While members of the general public were unquestionably welcome to enter the store, and even solicited to do so, nevertheless they were not entitled to do so by virtue of any public right enjoyed by citizens as part of the public"). Accordingly, for the defendants to prevail on this summary judgment motion, there can be no dispute as to whether the parking lot at issue was privately owned or whether the plaintiff entered the parking lot as a business invitee.
With respect to whether the parking lot is privately owned, the admissible evidence viewed in a light most favorable to the nonmoving party confirms there is no dispute between the parties that the LLC owned the lot. Indeed, the plaintiff has submitted the uncertified deposition of Sandra Levine, a member of the LLC, stating that the LLC owns the parking lot at issue and that there were no other owners of that lot at the time of the incident. The defendants also provide the same uncertified deposition testimony of Sandra Levine in support of their motion for summary judgment, and supplement that evidence with a certified affidavit from Noah Levine, President of Rapid, stating from personal knowledge that the LLC owned the parking lot at all times relevant to these proceedings. Accordingly, the defendants have provided credible evidence that the parking lot was privately owned by the LLC, and the plaintiff has not only failed to provide any evidence to dispute this fact but has provided evidence that supports it.
Although "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . [which contemplates] that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable"; (internal citation omitted; internal quotation marks omitted) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005); "[uncertified] deposition testimony [can be] admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists, particularly where . . . both parties submitted uncertified deposition transcripts." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006); see also Daniels v. Ericson, Superior Court, judicial district of New London, Docket No. CV 06 5001423 (July 17, 2007, Hurley, J.T.R.) (noting the court has discretion to admit evidence that has not been authenticated or certified if the opposing party does not object). Thus, while the record is silent as to any objection from either party concerning the admission of uncertified deposition transcripts, the use of such evidence by both parties militates in favor of the court considering the transcripts to discern the presence of a genuine issue of material fact.
In fact, the plaintiff further offers as evidence a copy of an unexecuted, unauthenticated and uncertified lease between the LLC and Robert C. Crimm, Jr., the owner of a business occupying part of the premises owned by the LLC. The lease provides Grimm with a nonexclusive right of way over the parking lot that Rapid sits on and where the plaintiffs injuries occurred. Although this lease need not be considered by the court based on Pantani, the lease actually helps to confirm that the LLC owned the parking lot at issue. See footnote 1. Not only does the lease explicitly state that the LLC owned the land at issue, but also it allowed the LLC to grant rights of way to other entities.
Rather than providing evidence that contradicts the ownership of the parking lot, the plaintiff instead argues that because the existence of a nuisance is generally a question of fact, the legal status of the parking lot should also be left to a jury to decide. This argument, however, fails to accurately capture the relevant case law. "Whether the elements necessary to establish a nuisance claim have been proven is usually a question of fact . . . unless it is clear that it does not constitute a nuisance as a matter of law." (Internal citation omitted.) Anzellotti v. National Amusements, Inc., Superior Court, judicial district of Hartford, Docket No. CV 95 0546129 (February 20, 1996, Hennessey, J.); see also State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 185, 527 A.2d 688 (1987) (concluding that the question of a defendant's control over property for purposes of evaluating a nuisance claim could be decided as a matter of law); Heritage Village Master Ass'n., Inc. v. Heritage Village Water Co., 30 Conn.App. 693, 709, 622 A.2d 578 (1993) (concluding that an element of a nuisance claim could be decided as a matter of law). In this case, it is undisputed that the LLC owned the parking lot, and the question of legal ownership of the parking lot in the context of a nuisance claim is a question of law for the court to decide.
With respect to the question of whether the plaintiff was entering the parking lot as a matter of right common to all citizens or as a business invitee, this fact is also not in dispute. Indeed, the plaintiff offers in opposition to the defendant's motion for summary judgment the certified affidavit of the plaintiff, attesting that he went to Rapid to vacuum his car. "One who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance." Webel v. Yale University, 125 Conn. 515, 524-25, 7 A.2d 215 (1939); see also Hightower v. Walgreen Eastern Co., Inc., Superior Court, judicial district of New London, Docket No. 553554 (August 15, 2000, Hurley, J.T.R.) ("Since the plaintiff was on the Walgreen's property as a business invitee or customer, she cannot bring a nuisance claim against Walgreen). Thus, because the plaintiff traveled to the parking lot to patronize Rapid, he was a business invitee or customer and not a member of the general public exercising a common right.
Consequently, reviewing the admissible evidence in a light most favorable to the non-moving party, there is no genuine issue of material fact with respect to either the LLC's ownership of the parking lot at issue in this case nor with respect to the plaintiff's status as a business invitee of Rapid at the time of his injury. Therefore, this motion may be decided as a matter of law.
Lastly, the plaintiff argues that even if there are no material facts in dispute, the defendants' motion for summary judgment should still be denied because they are not entitled to judgment as a matter of law. In this respect, the plaintiff argues both that Webel and its progeny only apply to business invitees actually entering a physical structure and that parking lots providing access to all members of the public can constitute a public nuisance when they contain conditions dangerous to the public. The overwhelming majority of cases deciding this question, however, have held that privately owned parking lots made available to the public by businesses to attract customers do not involve a public right, thereby foreclosing causes of action sounding in public nuisance. See, e.g., Kelsey v. Schoolground Three, 49 Conn.Sup. 338, 345, 877 A.2d 963 (2005) (citing Webel for the proposition that an employee's injury in a parking lot owned by a business did not sound in public nuisance law because there was no common right to the parking lot); Lippa v. Parkway Plaza, Inc., Superior Court, judicial district of Stamford, Docket No. CV 00 0177039 (April 11, 2001, Lewis, J.) (striking nuisance count because "a fall on privately owned property does not involve a nuisance, either private or public"); Hightower v. Walgreen Eastern Co., supra, Superior Court, Docket No. 553554 ("Since the plaintiff was on the Walgreen's property as a business invitee or customer, she cannot bring a nuisance claim against Walgreen"); Silveira v. Scheetz, Superior Court, judicial district of New London, Docket No. 549441 (September 15, 2000, Hurley, J.T.R.) [ 28 Conn. L. Rptr. 170] (denying a motion to strike a public nuisance count only because the complaint had been amended to allege municipal control of the parking lot); Silveira v. Scheetz, Superior Court, judicial district of New London, Docket No. 549441 (April 25, 2000, Martin, J.) (citing Webel for the proposition that an injury occurring on a privately owned driveway did not sound in public nuisance); Roy v. Mall at Bristol Care, Superior Court, judicial district of New Britain, Docket No. CV 487403 (January 19, 1999, Skolnick, J.) (debris located in shopping mall parking lot not a public nuisance because no public right to parking lot access); Mounts v. McDonald's Corp., Superior Court, judicial district of New London, Docket No. 539285 (December 10, 1998, Martin, J.) (citing Webel for the proposition that an injury occurring on a snowy sidewalk outside the restaurant was not a public nuisance because there was no public right to use the sidewalk); Norton v. Land Management, Inc., Superior Court, judicial district of New Haven, Docket No. 391950 (December 12, 1996, Blue, J.) (citing Webel for the proposition that loose gravel in private parking lot was not a public nuisance for want of a public right to use parking lot); Laverty v. Stop Shop Supermarket Co., Superior Court, judicial district of Hartford, Docket No. CV 95 0554032 (October 15, 1996, Hennessey, J.) (obstruction to supermarket entrance not a public nuisance for want to public right to enter supermarket premises); Brown v. Shawmut National Corp., Superior Court, judicial district of New Haven, Docket No. CV 96 0383347 (July 30, 1996, Corradino, J.) (citing Webel for the proposition that the Bank's icy sidewalk was not a public nuisance for want of a public right to use the sidewalk); Anzellotti v. National Amusements, Inc., Superior Court, judicial district of Hartford, Docket No. CV 95 0546129 (February 20, 1996, Hennessey, J.) (citing Webel for the proposition that a movie theater's snowy parking lot was not a public nuisance for want of a public right to use the parking lot); Jackson v. Stop Shop Supermarket Co., Superior Court, judicial district of Litchfield Docket No. CV 93 0062946 (April 28, 1995, Walsh, J.) (citing Webel for the proposition that an unkept shortcut entrance to supermarket was not a public nuisance for want of a public right to use that entrance); Massey v. The Mall at Buckland Hills, Superior Court, judicial district of Hartford, Docket No. CV 93 0531452 (February 4, 1994, Sheldon, J.) [ 11 Conn. L. Rptr. 30] (obstruction in common area of the mall not a public nuisance for want of a public right to be in the mall); Schmidt v. Stephen World of Wheels, Inc., Superior Court, judicial district of Litchfield, Docket No. 0047062 (August 1, 1990, Dranginis, J.) [ 2 Conn. L. Rptr. 161] (citing Webel for the proposition that there could be no public nuisance in store's parking lot for want of a public right to be in the parking lot).
By contrast, in Keith v. Prime Realty Corp., Superior Court, judicial district of New Haven, Docket No. CV 94 0359829 (August 9, 1994, Hartmere, J.), the court held that a parking lot containing a dangerous condition that was made accessible to the general public satisfied the public right requirement. That decision, however, was reached without any discussion of the Webel opinion and, as noted above, stands in contradistinction to the overwhelming precedent of this court. It is because Keith does not meaningfully distinguish itself from Webel that this court is obliged to follow the direction provided by our Supreme Court in Webel and, therefore, declines to hold that mere public access to a privately owned parking lot is sufficient to satisfy the public right requirement needed to support a public nuisance claim.
CONCLUSION
For the foregoing reasons, there is no genuine issue of material fact in dispute as to whether the parking lot was privately owned or whether the plaintiff was on the property as a business invitee at the time of his injury, and the defendants are entitled to judgment as a matter of law. Consequently, the defendants' motion for summary judgment as to the second count is granted.