Kloers v. Bridegeport Wilmot Apartments, Inc.

Lourdes KLOERS v. BRIDEGEPORT WILMOT APARTMENTS, INC., et al.

No. FBTCV166058766S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

November 20, 2017

UNPUBLISHED OPINION

OPINION

Anthony D. Truglia, Jr., J.

This is a winter slip and fall case. The defendant, Bridgeport Wilmot Apartments, Inc., moves for summary judgment on two grounds. First, the defendant argues that the plaintiff, Lourdes Kloers, alleges that she fell on the defendant’s property at a date and time when it can conclusively be shown that there was a continuing snow event. As a result, the defendant had no duty to keep the area free of ice and snow until a reasonable time has passed after the end of the storm. In the absence of such a duty, the defendant argues that it cannot be found liable for the plaintiff’s injuries. Second, the defendant. argues that the plaintiff cannot prove that she fell on ice and snow that might have accumulated prior to the snowfall on the day of the accident, and, therefore, the plaintiff cannot prove that the defendant breached a duty of care to her on the date and time of the accident. Accordingly, the defendant contends, summary judgment should enter in its favor.

Factual and Procedural History

The plaintiff alleges the following facts in count one of her amended complaint (entry # 133). The defendant is the owner of an apartment building located at 610 Wilmot Avenue in Bridgeport. As such, it has a duty " to exercise care to maintain the premises, including the buildings located on the premises, the sidewalks, entrances, exits, parking lot and driveways located on the premises in a reasonably safe condition for members of the public and business invitees." On March 5, 2015, ^[1] the plaintiff was lawfully on the premises and walking back to her apartment building in the complex after bringing her trash to a garbage bin, which was located on a service road near her building. At approximately 1:30 p.m. on that date, " she was caused to slip and fall on an accumulation of ice, which had been accumulating over a period of at least five days, and sustained a serious injury." The plaintiff alleges that her fall was caused by the carelessness and negligence of the defendant in one or more of nine ways, including (1) permitting " the sidewalks, parking lot, driveways entrances and exits located on the premises, to gather an accumulation of ice over the course of a period of time creating an unsafe and dangerous condition for pedestrians such as the plaintiff"; (2) failing to " apply salt, sand, and/or other abrasive materials to the sidewalks, parking lot, driveways, entrances and exits located on the premises"; and (3) allowing " the access road/driveway pavement [where the plaintiff fell] to become uneven so that snow/ice could not be adequately removed thereby creating an unsafe condition for pedestrians, such as the plaintiff."

In support of its motion for summary judgment, the defendant submitted, inter alia, excerpts from the plaintiff’s deposition testimony in which she describes the incident, as well as a copy of a weather report setting forth the conditions from March 3, 2015, through March 6, 2015, including detailed hour-by-hour weather conditions prevailing on March 5, 2015, the day of the incident. The defendant argues that the evidence from these two sources, none of which is disputed by the plaintiff, supports its contentions that (1) there was a continuing snow event immediately before the time when the plaintiff claims she was injured; and (2) there is no evidence of an accumulation of ice in the area in the five days before the plaintiff fell, which would have created a defective or dangerous condition on the premises.

In response, the plaintiff argues that the defendant has failed to establish that there is no genuine issue of material fact in the present case that would entitle the defendant to judgment as a matter of law. The plaintiff argues that the defendant has not shown- and cannot show- conclusively that it was not snowing at the time she fell. She submits in opposition to the motion her own deposition testimony adamantly insisting that the snow had stopped when she left her apartment and walked across the service road. Therefore, the plaintiff argues, there is a genuine issue of material fact as to whether there was ongoing winter precipitation at the time of the accident and a question as to whether the ongoing storm defense applies in this case. The plaintiff further argues that she alleges in her complaint that the defect which caused her fall was an accumulation of ice which had built up over a period of at least five days prior to the day she fell. Therefore, the plaintiff contends, there is a genuine issue of material fact as to whether her fall was caused not by freshly fallen snow and newly-formed ice, but by pre-existing icy conditions which the defendant knew of but failed to remedy in a timely fashion.

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 ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

The purpose of a motion for summary judgment is to dispose of actions lacking a triable issue of material fact. Dorazio v. M .B. Foster Electric Co., 157 Conn. 226, 228, 253 A.2d 22 (1968). When deciding a motion for summary judgment, the trial court views the evidence in the light most favorable to the non-moving party. Rodriguez v. Testa, 296 Conn. 1, 6, 993 A.2d 955 (2010). " The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991). " 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).

" [A] premises liability claim is a negligence cause of action." Diaz v. Manchester Memorial Hospital, 161 Conn.App. 787, 791 n.4, 130 A.3d 868 (2015). " The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006). " [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 .A.2d 1221 (2003).

" In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee ... A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them safe ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citations omitted; internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). " The relevant principles of premises liability are well established. A business owner owes its invitees a duty to keep its premises in a reasonably safe condition." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).

Furthermore, " [u]nder familiar principles of law, the defendant, as a property owner, is not an insurer of the safety of persons using ... the premises against the possibility of injury by reason of [a defective condition] thereon ... Mere proof of the presence of some [defective condition] does not necessarily show a breach of [a] defendant’s duty ... [T]he burden rests upon the plaintiff ... to offer evidence ... from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice." (Internal quotation marks omitted.) Hellamns v. Yale -New Haven Hospital, Inc., 147 Conn.App. 405, 410-11, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.2d 652 (2014) (appeal withdrawn, May 9, 2014).

A. Ongoing Storm Defense

The defendant relies in part on Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989), which established 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." Id., 197-98. The court reasoned that " [t]o 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." Id., 198. In Umsteadt v. G .R. Realty, 123 Conn.App. 73, 1 A.3d 243 (2010), the Appellate Court restated and clarified the holding in Kraus, determining that " the landowner’s duty to remove ice and snow does not arise until after a...