Opinion
CV156051564
07-02-2018
Sammy GONZALEZ v. ASNAT REALTY, LLC et al.
UNPUBLISHED OPINION
OPINION
James W. Abrams, J.
By Complaint dated November 26, 2014, the plaintiff Sammy Gonzalez seeks recovery against five defendants who were allegedly responsible for the abandoned English Station Power Plant in New Haven, Connecticut. The plaintiff claims damages based on severe injuries he suffered when he entered a hole in the fence surrounding the property and was electrocuted when he touched a live wire. On February 13, 2018, the defendants filed Motions for Summary Judgment to which the plaintiff filed an Objection dated May 3, 2018. The parties presented oral argument before the court on May 7, 2018 and filed Supplemental Memoranda at the court’s request on May 22, 2018.
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment 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. 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 ... 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." Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). "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]." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
The defendants argue that they did not owe the plaintiff a duty of care as a matter of law because his alleged injuries were sustained as a direct result of his participation in criminal acts. The defendants claim that Connecticut recently adopted the "wrongful conduct rule," which holds that it is a violation of public policy to allow a plaintiff to profit from his or her own criminal acts. Greenwald v. Van Handel, 311 Conn. 370, 376 (2014). In Greenwald, the sole issue before the court was "whether it would violate the public policy of this state to allow the plaintiff ... to maintain a professional negligence action against the defendant ... a licensed clinical social worker, on the basis of allegations that the defendant negligently failed to treat the plaintiff after he disclosed to the defendant that he had viewed child pornography." Id., 371-72. The court observed that "the plaintiff cannot prevail here unless we conclude that it is the public policy of this state to impose a duty on the defendant to protect the plaintiff from injuries resulting from the police raid of his home and impending prosecution as a consequence of his downloading and viewing of child pornography." Id., 376.
In order to decide whether a duty of care existed based on public policy considerations, the court in Greenwald analyzed the "wrongful conduct rule," and the manner in which the rule has been applied in other states. The court noted that Connecticut has yet to adopt the wrongful conduct rule, but that "[t]he generally articulated common-law ‘wrongful conduct’ rule ... provides that a plaintiff cannot maintain a tort action for injuries that are sustained as the direct result of his or her knowing and intentional participation in a criminal act." Id., 377. The Greenwald court further described the underlying public policy considerations in support of the wrongful conduct rule: "If courts chose to regularly give their aid under such circumstances, several unacceptable consequences would result. First, by making relief potentially available for wrongdoers, courts in effect would condone and encourage illegal conduct ... Second, some wrongdoers would be able to receive a profit or compensation as a result of their illegal acts. Third, and related to the two previously mentioned results, the public would view the legal system as a mockery of justice. Fourth, and finally, wrongdoers would be able to shift much of the responsibility for their illegal acts to other parties ... [W]here the plaintiff has engaged in illegal conduct, it should be the plaintiff’s own criminal responsibility which is determinative." (Emphasis added; internal quotation marks omitted.) Id., 378.
The Greenwald court observed that some courts in other jurisdictions adopted the wrongful conduct rule with certain limitations: "Courts in many of these states have limited the rule’s application to cases in which the plaintiff’s injuries stem from conduct that is prohibited, as opposed to merely regulated, by law, and the violation is serious or involves moral turpitude ... In addition, courts have universally recognized that there must be a sufficient causal nexus between the plaintiff’s illegal conduct and his alleged injuries to bar recovery." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 378-79. The court recognized, however, that "[t]he limitations applied to the wrongful conduct rule have been subject to criticism as fostering inconsistent results based on subjective line drawing and for failing to account for competing policy concerns." Id., 380 n.5, citing Dugger v. Arredondo, 408 S.W.3d 825, 835-36 (Tex. 2013).
It is important to note in regard to this case that the Greenwald court did not adopt any limitations or exceptions to the wrongful conduct rule that other states have recognized, such as limiting the rule to serious offenses or crimes involving "moral turpitude," because these limitations and exceptions were clearly not applicable to the facts in Greenwald. As explained by the court: "Although courts have had difficulty drawing these lines in some cases, the present case causes no such problems. The plaintiff has admitted to conduct that constitutes a serious felony, and such conduct has a direct causal connection to his alleged injuries." Greenwald v. Van Handel, supra, 311 Conn. 380.
The Greenwald dissent claimed that the adoption of the wrongful conduct rule under the specific circumstances of the case would not provide courts with enough future guidance: "[T]he adoption of the wrongful conduct rule, under these circumstances, would create a body of law that is both inconsistent in its application and insufficient as a guide to trial courts confronted with the issue. For instance, when does a court decide that behavior is so wrongful that the action must be dismissed? Is it a matter for this court to decide on a case-by-case basis? How will a trial court know to dismiss a case in the future, unless the case involves child pornography?" Greenwald v. Van Handel, supra, 311 Conn. 388 (Eveleigh, J., dissenting).
The court recognizes that an issue of fact exists in this case regarding the type of criminal behavior the plaintiff was engaged in at the time he was injured. The plaintiff claims that he had entered the property to collect scrap metal, while the defendants claim that the plaintiff was injured when he attempted to cut and steal the very wire that caused his injuries.
The court is left to determine whether the aforementioned issue of fact is material or whether either version of events would invoke the wrongful conduct rule under Greenwald. The court determines that the wrongful conduct rule applies to either version of events and, as a result, the defendants’ Motions for Summary Judgment are hereby granted.
This ruling obviates the need for the court to rule on the issue of whether the defendants owed the plaintiff a duty in this case based on issues of notice. In their original filings, the parties discussed the case of Marfucci v. Royal Park Limited Partnership, 243 Conn. 552 (1998), which involves the question of under what circumstances a landowner owes a duty to a trespasser and features a remarkably similar fact pattern to the one at issue. In Marfucci, the Supreme Court upheld the trial’s court’s granting of a Motion for Summary Judgment against the plaintiff where the landowners had no "actual or constructive knowledge that trespassers intruded into or upon the switchgear cabinets at all, let alone regularly." Id., 564-65. ---------