Superior Court of Connecticut, Judicial District of Windham, Putnam
David St. Pierre
Town of Plainfield et al
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANT EASTERN CONNECTICUT REHABILITATION SERVICES, INC. (##148 and 150), and OBJECTIONS THERETO BY PLAINTIFF (#161) and by the TOWN OF PLAINFIELD (#165) and ON MOTION FOR SUMMARY JUDGMENT OF TOWN OF PLAINFIELD (#152) and OBJECTION THERETO BY PLAINTIFF (#163)
John D. Boland, J.
Plaintiff's amended complaint alleges that he slipped and fell on wet steps leading to the men's locker room just after participating in a swimming program at a pool owned by the town of Plainfield. He charges that the town's employees failed to properly inspect and maintain the pertinent facilities and that the municipality is therefore liable to him for the injuries he claims he sustained. Alternatively, he claims that defendant Eastern Connecticut Rehabilitation Services, Inc. (" Eastern"), was the party in control of the pool and adjacent facilities at the time of his fall and that it is solely or jointly accountable to him in negligence. While both defendants have denied all these allegations, the town has effectively seconded plaintiff's claims against Eastern by filing a cross complaint alleging that Eastern was in control of the pool area and locker room at the time in question and thus if anyone is liable to plaintiff it is Eastern rather than the town.
Before the court at this moment are Eastern's two motions for summary judgment. #148 seeks a judgment in its favor on the liability allegations of the complaint, while #150 seeks a judgment on the town's allegations of liability raised by the cross complaint. These two motions focus upon premises liability. The town also moves for summary judgment (#152) on the complaint, but on the basis of certain statutes which, it claims, insulate it from or provide it with immunity against plaintiff's claims. All parties have objected to the various motions directed their way, and all argued their positions at the April 20 short calendar.
I. Standards for Determining a Motion for Summary Judgment
In ruling upon a motion for summary judgment, the court adheres to the process recently articulated in Marinos v. Poirot, 308 Conn. 706 (2013), at pages 711-12, 66 A.3d 860, as follows:
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." A party moving for summary judgment is held 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 . . . 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 (citations omitted).
In application of that process, the court requires of each moving party a showing excluding any real doubt as to any issue of material fact as to its right to a judgment on the allegations as they presently stand, and, if the moving party makes at least a prima facie showing that such is the case, then to require of each opposing party a showing revealing that there is evidence to establish that material facts are genuinely disputed and cannot be resolved summarily.
II. Premises Control: The Eastern Motions (##148 and 150)
The gravamen of both Eastern motions is that whatever agreement it had with respect to the swimming pool, it was not in control of the steps leading down to the men's locker room--the precise spot where plaintiff alleges he was injured. Eastern thus argues that it owes him no duty of care as to that portion of the town's building, nor did it agree to take over from the town any duty to manage that portion of the property. #148 challenges the plaintiff's allegations that it had control of that spot, while #150 focuses upon the town's counterclaim's allegations that Eastern was in control of the stairway to the exclusion of the town.
In a suit alleging defective premises, it is axiomatic that the party having control of the premises is the party liable for defects therein; " [l]iability for injuries caused by defective premises . . . does not depend upon who holds legal title, but rather on who has possession and control of the property." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). " The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee . . . [T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question . . . Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question [of control], then the issue should properly go to the jury for its determination; " Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453-4, 857 A.2d 439 (2004). " Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable man could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable men could fairly reach different conclusions on the question, the issue should properly go to the jury . . . In addition . . . control need not be exclusive; it is sufficient if it be shared with another." Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836 (2003).
By affidavit of its self-described partner and manager, Penny Allyn, Eastern avers that it is an organization that provides physical therapy services to patients, and had orally reserved use of the town's pool for about an hour's time on the date of plaintiff's injury. Ms. Allyn submits that the pool and locker rooms, and the stairways leading between them, are part of a larger facility owned and operated by the town. She further avers that the agreement was exclusively concerned with the pool, and that Eastern reserved no other portion of the property, had no ability to prevent any other person from using the stairways or the locker room, had no privilege to make any changes to the property, and thus had no obligation to provide maintenance or cleanup services in the stairway or to inspect or remedy any hazards in that area. As additional support for its motions, Eastern offers portions of the depositions of a town employee, Myra Ambrogi, and of the First Selectman, Paul Sweet. Ms. Ambrogi generally described the maintenance duties with respect to the stairway as belonging to the town. Any duty on Eastern's part, she testified, was limited to alerting town personnel to the existence of a problem which they would correct. Mr. Sweet claimed that the ultimate responsibility for the building remained with the town, again, a statement not connoting any transfer of control to the pool's user.
By way of response, both the town and the plaintiff essentially urge the court to hold that for the purpose of these motions, Eastern has failed to satisfy its burden " that it is quite clear what the truth is" and failed to exclude " any real doubt as to the existence of any genuine issue of material fact." If that is true, they have no separate duty of proof on this occasion.
Conn. Law of Torts, 3d. Ed., Wright, Fitzgerald, and Ankerman, at page 143 observes that " [w]hether a stairway was included in the plaintiff's lease and thus was under their control as tenants or was reserved to the defendant and so was under her control is essentially a question of intention, to be determined, in the light of all the significant circumstances . . ." In a case involving the control of a stairway in leased premises, Panaroni v. Johnson, 158 Conn. 92, 99, 256 A.2d 246 (1969), the Court held that when a " written lease read as a whole cannot be said to resolve definitely or expressly the issue of control . . . the actual use of the stairway, the circumstances attending its use, and the evidence as to repairs become relevant . . ." For lack of a better model, this court uses the terms " landlord" and " tenant" to describe the relationship of the corporate parties to this action rather loosely, as it is difficult to pigeonhole into any neat category a situation where Eastern not only occupies a fraction (disputed in amount) of the building's space, but also enjoys that privilege for only a fraction (undisputed in duration) of the time the pool is routinely put to use, all on the strength of an extremely skimpy written agreement. The " circumstances" which a factfinder would find relevant as to who controlled the steps would include, inter alia, the distance between the pool and the stairway, whether the stairs exclusively served the pool or were available to users of other parts of the premises (e.g., a weight room or a gymnasium), whether or not the town had a regular schedule of maintaining the stairway area, what protocol had historically been used to keep the steps safe, which party undertook post-injury repairs or maintenance, and so on. The material before the court is either silent or contested as to these details, any one of which might have a bearing upon the question they ask this court to decide summarily; certainly, the court cannot resolve them on the strength of opposing affidavits or contradictory deposition testimony. Resolution of the question of control must await the deliberations of the jury, or, at least, a decision by the trial court assessing the sufficiency of the evidence presented at trial to warrant sending either party's liability claims to the jury for determination.
III. Municipal Accountability: The Town's Motion (#152)
The operative, February 19, 2014 amended complaint (#126), states the claims against the town of Plainfield in two counts. Count One alleges negligence pursuant to Conn. Gen. Stat. § 7-465, while Count Two alleges negligence pursuant to Conn. Gen. Stat. § 52-557n. The motion for summary judgment challenges each proposition.
A. § 52-557n
The town's first special defense is that the doctrine of governmental immunity bars this suit. The statute, in pertinent part, provides in subsection (a)(1)(A) that " a political subdivision of the state shall be liable for damages to person or property caused by . . . the negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties, " but, as directed by (a)(2)(B), such liability shall not arise as to " negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." This statute " abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties . . . [It] explicitly shields a municipality from liability for damages to person or property caused by the negligent acts ...