Opinion
No. CV02-0518486S
April 22, 2005
MOTION FOR SUMMARY JUDGMENT #125.25
FACTS
The plaintiff, Suzanne Wood, while driving her vehicle in the driveway of the condominium complex toward her unit on February 5, 2001, became stuck in snow. She shoveled the snow and pushed her vehicle with the help of others into her garage. As a result she sustained injuries.
The plaintiff filed a four-count complaint on December 3, 2002, against the defendants: Sheltered Ponds Condominium Association, Inc. (Sheltered Ponds) and White Katzman in negligence, and against the defendant, MacBeth Landscaping, in negligence and breach of contract. On June 23, 2004, Sheltered Ponds and White Katzman filed permission to file a motion for summary judgment, their motion for summary judgment and a memorandum of law in support. On September 14, 2004, the plaintiff filed a memorandum of law in opposition to the motion. This matter was heard on the short calendar on January 18, 2005.
On September 7, 2004, the court denied permission but subsequently vacated that denial on January 3, 2005.
DISCUSSION
Summary judgment shall be rendered "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." Practice Book § 17-49. "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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "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 . . ." (Citation omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
Sheltered Ponds and White Katzman argue in their memorandum of law that any alleged negligence on their part was not the proximate cause of the plaintiff's injuries because her "own exertion while shoveling snow and pushing her vehicle from the driveway into her garage at the condominium complex was the proximate cause. They further argue that the snowstorm was still in progress at the time that the plaintiff sustained her injuries and since no unusual circumstances were present requiring them to take remedial action, they are relieved from any duty to remove allegedly dangerous accumulations of snow until a reasonable time after the storm ended. In support of their motion, they rely on uncertified deposition testimony of the plaintiff.
Both the plaintiff and the defendants rely on the deposition testimony of the plaintiff. The parties have not submitted, however, certified copies of that testimony nor have they objected to the use of that testimony as evidence in support of and in opposition to the motion for summary judgment. It is submitted that the court consider this evidence on the basis that neither party has objected to its use. See Cormier v. Spring Lake Co., LLC., Superior Court, judicial district of New Britain, Docket No. CV 03 0522871 (February 4, 2005, Burke, J.).
In response, the plaintiff argues that the negligence of Sheltered Ponds and White Katzman is the proximate cause of her injuries because it is their conduct, by not removing the snow, that resulted in her injuries. She asserts that since her conduct was within the scope of risk created by the negligence of Sheltered Ponds and White Katzman in their failure to plow the driveway to her unit requiring her to shovel and push her car from the middle of that roadway into her garage, her actions are neither an intervening nor a superseding cause. Moreover, she maintains that questions of fact exist as to comparative negligence and superseding or intervening causes which must be left to the trier of fact. The plaintiff further argues that her claim of over exertion relates only to part of her claim for injuries and that Sheltered Ponds and White Katzman fail to acknowledge that her injuries were caused also when she fell while shoveling the snow from under her car. She next counters that unusual circumstances did exist which gave rise to Sheltered Ponds and White Katzman's duty to take remedial action while the storm was still in progress; that the contract for snow removal between Sheltered Ponds and MacBeth Landscaping required the removal of snow prior to the end of a snowstorm; and that during previous snowstorms her area had been plowed before the conclusion of the snowstorm and she relied on that to her detriment; and liability exists where the landowner's contractor does attempt to remove snow and ice and subsequently makes the conditions for the invitees more dangerous. Lastly, she argues that Sheltered Ponds and White Katzman rely exclusively on deposition testimony of the plaintiff in support of their motion and that at trial much of this testimony may be contradicted or explained. Submitted with the plaintiff's response are the following exhibits: (1) an affidavit of the plaintiff in which she attests to the facts that resulted in her injuries; (2) an unauthenticated map of the complex; (3) an unauthenticated excerpt from the declaration contract between the plaintiff and Sheltered Ponds, specifically Article VI entitled "Maintenance, Repair and Replacement"; (4) an unauthenticated contract between MacBeth Landscaping and Sheltered Ponds for the removal of snow; (5) an affidavit of Scott Krystofolski, a unit owner, who attests that over the years snow removal began prior to the end of a snowstorm; (6) an unauthenticated summary of weather and ground conditions for the period of February 3 through February 5, 2001; and (7) an unauthenticated, uncertified excerpt of the plaintiff's testimony.
The plaintiff has not filed any affidavits attesting to the authenticity of the climatological reports or any of the other documentary evidence submitted. "[U]ncertified copies of documents to which no affidavit exists attesting to their authenticity . . . do not constitute proof or documentary evidence" for the purposes of a motion for summary judgment. (Internal quotation marks omitted.) National Collectors v. Tierney, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0277857 (January 20, 2004, Tanzer, J.). The only admissible evidence that this court should consider are the two affidavits.
"The essential elements of a cause of action in negligence are . . . duty; breach of that duty; causation; and actual injury . . . [T]here can be no actionable negligence unless there exists a cognizable duty of care." (Citation omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687, n. 13, 849 A.2d 813 (2004). "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). "Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 257, 815 A.2d 263 (2003).
Sheltered Ponds and White Katzman argue that because the snowstorm was in progress at the time of the plaintiff's fall and that there were no unusual circumstances that would give rise to a duty to take remedial action while the storm was still in progress, they are entitled to judgment as a matter of law pursuant to Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989). The plaintiff admits that the snowstorm was in progress but relies on the contract agreements; the prior action by Sheltered Ponds and White Katzman in removing snow from the driveway to her condominium during previous snowstorms, as attested to in her affidavit and deposition and the affidavit from the other unit owner; and that the snow removal had been undertaken that day by them on all of the condominium roadways and driveways as well as the beginning of her driveway as evidence of the existence of unusual circumstances to impose a duty of care on both Sheltered Ponds and White Katzman. She further relies on the evidence submitted for the proposition that where one renders a service and fails to exercise reasonable care in the performance of that undertaking, that person has then breached the duty of care. In discussing the commencement of a performance, which under the law is not required to be done, the court in Victoria v. Wilson, Superior Court, judicial district of New London, Docket No. 543819 (September 21, 1999, Corradino, J.) ( 25 Conn. L. Rptr. 502) cited to a New York lower court case and noted: "Had the defendant in the instant case done nothing except to permit the snow and ice, as it fell, to remain undisturbed, there would undoubtedly be no cause of action against [the defendant] for the injuries to . . . [the plaintiff] . . . having, however, undertaken to remove such snow and ice, the defendant was bound to do so in a reasonable and prudent manner and to avoid setting any traps and pitfalls. [The defendant] failed in this duty by not removing all of the snow and ice once [the defendant] had undertaken to do so . . ." (Internal quotation marks omitted.) Id.
Kraus v. Newton is a negligence case based on a slip and fall by the plaintiff on the steps of the defendant's premises which were covered with ice. Kraus v. Newton, supra, 211 Conn. 192-93. "The jury returned a verdict for the defendant following a charge instructing it that the rule of law is that an owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from its outside entrance walks, platforms, and steps." (Internal quotation marks omitted.) Id., 193.
"The party moving for summary judgment is held to a strict standard of demonstrating its entitlement to summary judgment. Kakadelis v. DeFabritis, 191 Conn. 276, 282 [ 464 A.2d 57 (1983)]. `To satisfy [their] burden the movant[s] 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.' Plouffe v. New York, N.H.H.R. Co., 160 Conn. 482, 488 [ 280 A.2d 359 (1971)]. Only after the movant[s] ha[ve] satisfied this strict burden does the burden shift so that `the party opposing the motion must substantiate its adverse claim by showing that there is a genuine issue of material fact . . .' (Citations omitted; internal quotation marks omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 297 [ 600 A.2d 1040 (1991)]." Moss v. Southfield Condominium Assn., Inc., Superior Court, judicial district of Danbury, Docket No. 320289 (November 7, 1996, Moraghan, J.).
The evidence submitted by Sheltered Ponds and White Katzman does not show the nonexistence of all the issues of fact raised by the plaintiff's pleadings relating to the negligence claims. The plaintiff, however, has met her burden of showing the existence of a genuine issue of material fact, even without the admission of the contract agreements as evidence. In 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 . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
For the foregoing reasons, the motion for summary judgment is denied.
BURKE, J.