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Basso v. Catapano

Superior Court of Connecticut, Judicial District of New Haven, New Haven

August 25, 2015

Angelo Basso
v.
Frank J. Catapano et al

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#116)

Elpedio N. Vitale, J.

Pursuant to Practice Book § 17-44 et seq., the defendants Frank J. Catapano and Anne Catapano move for summary judgment as to the first and second counts of the plaintiff's two-count complaint, dated November 20, 2013. The plaintiff alleges negligence arising out of a January 17, 2013 slip and fall incident occurring at the defendants' residential premises located at 347 Whittemore Road, Middlebury, Connecticut (" the premises"). On that date, the plaintiff alleges that " a defective, dangerous and unsafe condition existed on the property . . . namely the above referenced exterior set of steps at the front entrance of the premises that was situated thereon were covered with an accumulation of ice and/or snow." The plaintiff further alleges that he was " upon the property . . . as an invitee" and while upon the premises " he stepped onto the aforementioned exterior set of steps at the front entrance of the premises thereon, and upon doing so, he came into contact with said defective, dangerous and unsafe condition, and as a result, was caused to slip and fall . . ."

The defendant contends that summary judgment should enter as to both counts of the complaint because no genuine issues of material fact are in dispute and because " they did not breach any duty owed to the plaintiff trespasser relative to the incident alleged to have occurred on their residential premises." In support of their motion, the defendants submitted the affidavits of the defendants as well as excerpts of the certified deposition testimony transcript of the plaintiff Angelo Basso. The defendant also submitted the answers and supplemental answers by the plaintiff to defendants' requests for admissions. The defendants submitted a memorandum in support of their motion. The plaintiff has " strenuously" objected, and submitted a memorandum in opposition to the motion. The defendants filed a reply to the objection. The court heard oral argument on June 29, 2015.

Discussion

" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is not real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

" 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]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

Nevertheless, " [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). " The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

The party opposing summary judgment generally must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. " The '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." (Citations omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Insurance Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " The facts at issue are those alleged in the pleadings." Washington v. Blackmore, 119 Conn.App. 218, 220, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010). " 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." (Internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010). " Issue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted) Barrasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004) [T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Little v. Yale University, 92 Conn.App. 232, 234-35, 884 A.2d 427 (2005) (emphasis in original; citation and internal quotation marks omitted). See also Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994) (" Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate adverse claim with evidence disclosing the existence of an issue").

" Demonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . to establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . such assertions are insufficient regardless of whether they are contained in a complaint or brief. Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244-45, 659 A.2d 1226 (1995).

" To defeat a motion for summary judgment, the nonmoving party 'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Connecticut's premises liability law has long provided that " [t]he 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); see Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 330-31, 612 A.2d 1197 (1992) (Connecticut " continue[s] to adhere to the proposition that the defendant's duty is based on the entry status of the particular person in question"). " Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact." Roberts v. Rosenblatt, 146 Conn. 110, 112, 148 A.2d 142 (1959); Morin v. Bell Court Condominium Association, 25 Conn.App. 112-15, 593 A.2d 147 (1991), aff'd 223 Conn. 323, 612 A.2d 1197 (1992). " Where, however, the facts essential to the determination of plaintiff's status are not in dispute, a legal question is presented." Morin v. Bell Court Condominium Association, supra, 25 Conn.App. 115.

" In general, there is an ascending duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). 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, 2003 Conn. Super. LEXIS 683); see also 2 Restatement (Second), Torts § 329 (1965). " One in possession of property ordinarily owes no duty to trespassers, either infant or adult, to keep the property in a reasonable safe condition for their use, since he may properly assume that they will not be there." Greene v. DiFazio, 148 Conn. 419, 422, 171 A.2d 411 (1961). " 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." (Emphasis added; internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 558, 707 A.2d 15 (1998). " The basis of the restricted liability of a landowner to a trespasser upon his property . . . rests on the fact that the landowner has dominion over the land and a higher right to its use than does the trespasser, and that consequently the trespasser is to be taken to have assumed the risk of conditions upon the property . . ." (Citations omitted.) McPheters v. Loomis, 125 Conn. 526, 532, 7 A.2d 437 (1939). An intermediate duty is owed by a possessor of land to a licensee, " a person who is privileged to enter to remain upon land by virtue of the possessor's consent . . . The duty that a landowner owes to a licensee does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he [or she] finds them . . . If the licensor actually or constructively knows of the licensee's presence on the premises, however, the licensor must use reasonable care both to refrain from actively subjecting him [or her] to danger and to warn him [or her] of dangerous conditions which the possessor knows of but which he [or she] cannot reasonably assume that the licensee knows of or by reasonable use of his [or her] faculties would observe." (Citation omitted; internal quotation marks omitted.) Salaman v. Waterbury, supra, 246 Conn. 305.

A possessor of land owes the highest duty to an invitee. " A possessor of land has a duty to an invitee. " A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably 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.) McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 294, 791 A.2d 602 (2002), aff'd, 263 Conn. 378, 819 A.2d 795 (2003). Connecticut recognizes three distinct types of invitee: " Invitees fall into certain general categories. A public invitee 'is a person who is invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public.' Restatement (Second), 2 Torts § 332. A business invitee 'is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.' Restatement (Second), 2 Torts § 332. Section 52-557a of the General Statutes, which provides that '[t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee, ' in effect, recognizes a third kind of invitee, namely, the social invitee." Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). While at common law social guests were generally considered licensees; see 2 Restatement (Second), supra, § 330, comment (h); " [t]he language of § 52-557a indicates rather that the legislature intended to require a landowner to exercise the same standard of care toward every person whom he 'invited' onto his premises, whether the owner extended such an invitation for business or for pleasure." Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991).

In the present case, it is undisputed that at the time of the alleged occurrence, the plaintiff traveled by foot onto the property known as 347 Whittemore Road in Middlebury, CT for the purpose of selling windows to the individuals residing at that address. It is further undisputed that the plaintiff had not received either written or oral permission from the property owners to enter onto the property at the time. It is further undisputed that the plaintiff failed to obtain a license from the Board of Selectman from the town of Middlebury to sell goods from house to house on the date of the alleged occurrence. The plaintiff also acknowledged in his deposition that at no ...


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