Opinion
No. CV02 0281859-S
February 4, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #108
I PROCEDURAL HISTORY
On August 20, 2002, the plaintiff, Thomas Rivera, filed a one-count complaint against the defendant, Meriden Housing Authority, alleging that on or about February 13, 2001, he slipped and fell due to snow and ice and suffered injury while lawfully walking on a sidewalk abutting property owned by the defendant. In his complaint, the plaintiff alleges that the defendant was under a duty to maintain the abutting sidewalk in a reasonably safe condition. The plaintiff further alleges that his fall was the direct and proximate result of the carelessness and negligence of the defendant because the defendant knew or should have known of the defective and dangerous condition on the abutting sidewalk, yet failed to remedy the same. The defendant filed an answer and special defense on January 13, 2003. The special defense alleges contributory negligence.
The court notes that the plaintiff alleges in his complaint that he was lawfully on the premises of the defendant. The plaintiff's memorandum of law in opposition to the defendant's motion for summary judgment, however, discusses the duty of care owed to a trespasser. "A trespasser is one who enters upon land without the consent of the possessor to do so." Shapiro v. Hillside Village Condominium Assn., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274597 (March 7, 2003, Wiese, J.) ( 34 Conn. L. Rptr. 262, 264). The plaintiff admits in his deposition, a certified copy of which is attached as Exhibit D to the defendant's memorandum of law in support of its motion for summary judgment, that he did not have permission from the defendant to be on the premises of the defendant. Accordingly, the court will consider the plaintiff a trespasser for the purposes of deciding the defendant's motion.
On August 6, 2003, the defendant filed a motion for summary judgment on the grounds that no genuine issues of material fact exist and that the defendant is entitled to judgment as a matter of law. The defendant argues that it owed the plaintiff, an adult trespasser, the limited duty to refrain from intentional, reckless, willful, or wanton conduct that may cause injury to the trespasser. The defendant argues that the plaintiff did not allege in his complaint that the defendant intentionally, recklessly, willfully, or wantonly caused the plaintiff injury. In support of its motion, the defendant submits the following: (1) a memorandum of law; (2) a certified portion of the plaintiff's deposition testimony; (3) a sworn affidavit from Larry Moro, special project manager of the defendant, along with authenticated photographs of the sidewalk where the plaintiff allegedly sustained injuries, and; (4) the complaint.
On August 27, 2003, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment contending that there are genuine issues of material fact in dispute and that the defendant is not entitled to judgment as a matter of law. The plaintiff argues in his memorandum in opposition that the sidewalk on which he allegedly sustained injuries was regularly used by the public as a throughway, and that the defendant, therefore, had a duty to anticipate trespassers. The plaintiff argues that the defendant had constructive knowledge of the presence of the plaintiff on the sidewalk and therefore had a duty to keep the area clean and free from ice and snow. The plaintiff submits his affidavit in support of his memorandum.
On September 23, 2003, the defendant filed a reply to the plaintiff's memorandum of law in opposition to the defendant's motion for summary judgment. The court heard oral argument on October 20, 2003.
II DISCUSSION
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003). "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 judgment as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "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 [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Id., 252-53. "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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.) Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003). "[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 . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn. App. 287, 290-91, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "Where there is no duty, there can be no negligence." (Internal quotation marks omitted.) Hassett v. Palmer, 126 Conn. 468, 473, 12 A.2d 646 (1940).
The defendant argues that it owed the plaintiff the limited duty of care to refrain from intentional, reckless, willful, or wanton conduct because the plaintiff's status was that of an adult trespasser. The defendant further argues that it did not have actual or constructive knowledge of trespassers regularly intruding upon the area where the plaintiff alleges to have sustained injuries. The defendant relies primarily on Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 707 A.2d 15 (1998), in support of its argument that it owed a limited duty of care to the plaintiff.
The plaintiff, also relying on Maffucci and on § 335 of the Restatement (Second) of Torts, argues in his memorandum in opposition that the defendant had constructive knowledge of the presence of trespassers constantly intruding upon the walkway on which the plaintiff allegedly sustained injuries. As such, the plaintiff asserts that the defendant had a duty to exercise reasonable care and to take precautions against injury to trespassers. The plaintiff argues that a genuine issue of material fact exists concerning the defendant's knowledge of trespassers in the area where the plaintiff allegedly sustained injuries.
Section 335 of the Restatement (Second) of Torts provides: "A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition (i) is one which the possessor has created or maintains and (ii) is, to his knowledge, likely to cause death or [serious] bodily harm to such trespassers and (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved." 2 Restatement (Second), Torts § 335, p. 188 (1965).
"The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property." Salaman v. Waterbury, 246 Conn. 298, 304-05, 717 A.2d 161 (1998). "A possessor of land has no duty to anticipate the presence of trespassers . . . Absent a duty of the [defendant] to anticipate trespassers, the plaintiff must [present] evidence of some facts within the [defendant's] knowledge from which [it] should have known of the presence of trespassers routinely intruding [onto its property]." (Citations omitted.) Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 563-64. "It is well established that a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, but has the duty only to refrain from causing injury to a trespasser intentionally, or by willful, wanton or reckless conduct. . . . There is an equally well established exception to this general rule. [I]f the owner . . . know[s] that the presence of trespassers is to be expected, then the common obligation of exercising reasonable care gives rise to the correlative duty of taking such precautions against injuring trespassers as a reasonable foresight of harm ought to suggest." (Citation omitted; internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 558-59.
The Maffucci court also noted: "The plaintiff made no allegation of intentional harm or wilful, wanton or reckless conduct on the part of the defendant . . . It is unnecessary, therefore, to address this potential duty owed by the [defendant]." (Citation omitted.) Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 558 n. 6.
"Knowledge of the presence of trespassers can be imputed to a possessor of land only if there were shown to be facts within the knowledge of the possessor that trespassers constantly intrude[d] upon a limited area of the land." (Internal quotation marks omitted.) Id., 560. "Actual knowledge of trespassers on a limited area of the land is not necessary if the possessor has constructive knowledge of their presence, i.e., if [it] know[s] that the presence of trespassers is to be expected . . . To prove constructive knowledge of the plaintiff's presence on the premises, [however] the plaintiff must prove a level of knowledge equivalent to actual knowledge." (Citations omitted; internal quotation marks omitted.) Id., 562-63.
In Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 552, the plaintiff "sought damages for injuries he sustained when he came in contact with a live electrical circuit inside a switchgear cabinet while trespassing on the defendant owner's property. The defendants moved for summary judgment contending that they owed no duty to the plaintiff because they did not know, nor had a reason to know, about trespassers entering the switchgear cabinets before plaintiff's injury. The trial court granted the motion for summary [judgment], but the Appellate Court reversed, concluding that material issues of fact existed about whether the defendants had actual or constructive notice of the presence of trespassers. The Appellate Court based this conclusion on three elements of the deposition testimony presented: (1) the plaintiff and [a cohort] Fricke had witnessed people openly removing copper from the . . . property for the two weeks preceding the plaintiff's injuries; (2) the switchgear cabinets were open when the plaintiff and [his cohort] arrived at the switchgear cabinets, the padlocks already were cut, and there were obvious signs that copper already had been removed; and (3) testimony indicated that [the property owner] Royal Park was aware of prior trespasses to the building . . . In reversing the Appellate Court decision and reinstating the trial court's order granting summary judgment, the Supreme Court stated that as a mailer of law, these elements emphasized by the Appellate Court failed to indicate the defendants' actual or constructive knowledge about persistent trespassing into the switchgear cabinets. The Supreme Court reasoned that any evidence about the defendants' knowledge of trespassers in other areas of the property was insufficient to show the defendants' knowledge of trespassers in the specific switchgear cabinets at issue . . . and evidence about a prior intrusion into the switchgear cabinets was insufficient to demonstrate that trespassers `regularly' intruded into these cabinets." (Citations omitted; internal quotation marks omitted.) Ramos v. Heonis, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0360779 (September 20, 2001, Stevens, J.).
In the present case, the defendant submits the sworn affidavit of Larry Moro, special project manager of the defendant, as evidence in support of its argument that it did not have knowledge that any individuals regularly intruded on the precise area of the defendant's property that allegedly caused the injury to the plaintiff. Moro asserts in his affidavit that "the area . . . where [the plaintiff] claims that he fell is not within an area that is used by tenants or visitors to the property for any reason, especially in the winter months when there is snow and ice on the ground . . . [T]he Housing Authority had no idea that individuals such as [the plaintiff] would go around the side of the building and walk in the area where [the plaintiff] claims to have fallen at any time because there is no reason to be in that area."
The plaintiff alleges that the defendant had a duty to anticipate trespassers because the area in which the plaintiff allegedly sustained injuries was known by the defendant to be used regularly as a public throughway. Accordingly, the plaintiff contends that the defendant had constructive knowledge of the presence of the plaintiff at the time of his fall. In support of his argument, the plaintiff submits his affidavit as evidence of constructive knowledge on the part of the defendant. The plaintiff asserts in his affidavit that he often uses the area in which he allegedly sustained injuries as a throughway between two streets and "often observe[s] other individuals, not living in the complex, using the walkways through the complex for the same purpose."
It is noted that the plaintiff did not allege in his complaint that the defendant had constructive knowledge of the presence of trespassers constantly intruding upon its premises and therefore had a duty to exercise reasonable care and to take precautions against injury to trespassers. Rather, the plaintiff alleged in his complaint that he was lawfully on the premises of the defendant and that his fall was the result of the carelessness and negligence of the defendant in not inspecting the premises and removing the snow and ice. Only in his affidavit in support of his opposition to the defendant's motion did the plaintiff state that the defendant had constructive knowledge of the presence of trespassers constantly intruding upon its premises, thereby elevating the duty of care owed to the plaintiff. "Affidavits are not pleadings . . . and a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of a counter-affidavit . . . The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Emphasis added; internal quotation marks omitted.) Collum v. Chapin, 40 Conn. App. 449, 453, 671 A.2d 1329 (1996).
The court finds that the defendant has met its burden of showing the absence of any genuine issue of material fact concerning the actual or constructive knowledge of the presence of the plaintiff as a trespasser. Moro's affidavit attests that the defendant had no knowledge of the presence of any individuals using the area in which the plaintiff allegedly sustained injuries as a public walkway. Moreover, the defendant had no reason to expect the presence of trespassers in the area because it is not one which is used by tenants or visitors to the property. The plaintiff has not provided sufficient evidence that would create a genuine issue of material fact that the defendant knew or should have known of the presence of trespassers that routinely intrude onto the limited area of property on which the plaintiff allegedly sustained injuries. See Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 564-65.
The plaintiff claims in his affidavit that he often uses the walkway on which he allegedly sustained injuries as a throughway and often observes individuals who do not live at the complex use the walkway for the same purpose. The plaintiff has not, however, presented evidence of "facts within the knowledge of the possessor that trespassers constantly [intrude] upon a limited area of the [defendant's] land." Id., 560. Based on the standard established in Maffucci, the plaintiff's submission falls short of demonstrating that the defendant knew or should have known that trespassing regularly occurred in the area where the plaintiff allegedly sustained injuries. The plaintiff has failed to submit sufficient evidence that the defendant had actual or constructive knowledge of trespassers in the area where the plaintiff allegedly sustained injuries. Consequently, the only duty owed to the plaintiff was to refrain from causing injury to the plaintiff, an adult trespasser, intentionally, or by willful, wanton or reckless conduct, which was not alleged by the plaintiff in his complaint. See Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 564-65.
III CONCLUSION
Accordingly, because there are no disputed issues of material fact, the defendant is entitled to judgment as a matter of law. The court grants the defendant's motion for summary judgment.
So ordered.
BY THE COURT
Peter Emmett Wiese, Judge.