Belevich v. Renaissance I, LLC

• Decision Date: 31 August 2021
• Docket Number: AC 43085
• Citation: 207 Conn.App. 119,261 A.3d 1
• Parties: Robert BELEVICH v. RENAISSANCE I, LLC
• Court: Connecticut Court of Appeals

207 Conn.App. 119

261 A.3d 1

Robert BELEVICH

v.RENAISSANCE I, LLC

AC 43085

Appellate Court of Connecticut.

Argued October 7, 2020

Officially released August 31, 2021

Russell J. Bonin, with whom was Phyllis M. Pari, New Haven, for the appellants (plaintiffs).

David M. Houf, Rocky Hill, for the appellees (defendants).

Moll, Alexander and DiPentima, Js.

MOLL, J.

The plaintiff, Robert Belevich, and the intervening plaintiff, Yale University (Yale) (collectively, plaintiffs), appeal from the summary judgment rendered by the trial court in favor of the defendants, Renaissance I, LLC (Renaissance), B & W Paving & Landscaping, LLC (B & W), and Winstanley Property Management, LLC (Winstanley) (collectively, defendants), on Belevich's one count complaint sounding in premises liability arising out of his alleged slip and fall.¹ On appeal, the plaintiffs claim that the court improperly granted summary judgment in favor of the defendants on the basis of the ongoing storm doctrine because (1) the defendants did not establish the absence of a genuine issue of material fact as to the applicability of the doctrine, and (2) the court improperly, albeit implicitly, shifted the burden to the plaintiffs to negate the applicability of the doctrine, contending that the defendants should have been required to demonstrate that the ongoing storm produced the black ice on which Belevich allegedly fell.² We affirm the summary judgment of the trial court.

Belevich alleged, inter alia, the following facts in the operative complaint. On January 31, 2017, Belevich was caused to slip and fall as a result of untreated ice on premises possessed, controlled, managed, and maintained by the defendants. Such occurrence was alleged to have resulted from the negligence of the defendants in one or more of seven ways specified in the complaint. As a result of such fall, Belevich suffered various physical injuries and has incurred, and may continue to incur, medical expenses, pain and suffering, loss of enjoyment of life's activities, and a loss of wages and earning capacity.

On November 1, 2017, Belevich commenced the present action against Renaissance. On November 29, 2017, pursuant to General Statutes § 31-293, Yale filed a motion to intervene as a party plaintiff, alleging that, on or about January 31, 2017, Belevich was an employee of Yale, and claiming that any damages recovered by him shall be paid and apportioned such that Yale would be reimbursed for all workers' compensation benefits it paid to or on behalf of Belevich pursuant to the Workers' Compensation Act, General Statutes § 31-275 et seq. The court granted Yale's motion to intervene on January 17, 2018. Thereafter, B & W and Winstanley were cited in as party defendants.

On July 11, 2018, Belevich filed his second amended complaint, which became the operative complaint, sounding in one count of premises liability.³ In the operative complaint, Belevich alleged that on January 31, 2017, he was caused to slip and fall as a result of untreated ice stemming from the negligence of the defendants. The defendants answered the complaint and asserted a special defense alleging that Belevich's alleged injuries and damages were caused, in whole or in part, by his own negligence.

On October 31, 2018, the defendants filed a motion for summary judgment directed to the operative complaint, accompanied by a supporting memorandum of law and appended exhibits. The defendants argued therein that they were entitled to judgment as a matter of law on the grounds that they owed no duty to Belevich (1) on the basis of the ongoing storm doctrine and (2) because they lacked actual or constructive notice of the alleged defect. As evidentiary support for their motion, the defendants submitted transcript excerpts from the September 20, 2018 deposition of Belevich.

Those excerpts reflected Belevich's testimony to the following facts. On January 31, 2017, Belevich was an HVAC controls mechanic employed by Yale. It was snowing when he arrived at work. Belevich did not know when it started to snow that morning. As far as he knew, from the time he arrived at work until his fall at 2:30 p.m., it continued to snow. He was sure that while he was working, he looked out windows and saw that it was continuing to snow. At 2:30 p.m., while walking toward the garage where he had parked his car, he slipped and fell in a parking lot in front of 344 Winchester Avenue in New Haven. Belevich testified unequivocally that it was snowing at the time of his fall. In addition, there were a couple of inches of snow on the ground, and at least one snowplow was in the process of plowing the parking lot. Belevich testified that he walked from the part of the parking lot that was covered in snow to the area that had been cleared; he "walk[ed] a little bit faster ... picked up speed and ... fell." He thought he fell on black ice. He had no idea how thick the ice was, and he did not know how long it had been there.

On March 6, 2019, Belevich filed a memorandum of law in opposition to the defendants' motion for summary judgment with appended exhibits, including additional transcript excerpts from his deposition, as well as his March 6, 2019 affidavit.⁴ In his affidavit, Belevich stated, among other things, that, on January 31, 2017, during the 11 a.m. hour while he was waiting for a Yale van to transport him from a job assignment, he did not see any snow falling and that he did not remember seeing snow falling during a fifteen minute ride when his lunch break was over at 12:30 p.m. He also stated that, on January 31, 2017, at approximately 2:30 p.m., around the time of his afternoon break, he noticed that it was snowing.

On May 17, 2019, the trial court granted the defendants' motion for summary judgment on the basis of the ongoing storm doctrine.⁵ The court reasoned: "While the only evidence before the court regarding the ongoing storm issue is [Belevich's] deposition testimony indicating that it was snowing when he fell, that testimony is uncontroverted and, as a result, sufficient to allow the defendant[s] to meet [their] factual burden on the ongoing storm issue. Clearly, had [Belevich] presented the court with certified climatological data, testimony or any other evidence to the contrary, it would give rise to a genuine issue of material fact, but no such evidence is before the court. As a result, the defendant[s'] motion for summary judgment is hereby granted."⁶ This appeal followed. Additional facts and procedural history will be set forth as necessary.

Before turning to the plaintiffs' claims on appeal, we set forth the relevant standard of review. " 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]. ... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Emphasis omitted; internal quotation marks omitted.) Capasso v. Christmann , 163 Conn. App. 248, 257, 135 A.3d 733 (2016).

On appeal, the plaintiffs claim that the court improperly rendered summary judgment in favor of the defendants on the basis of the ongoing storm doctrine because (1) the defendants did not establish the absence of a genuine issue of material fact as to the applicability of the doctrine, and (2) the court improperly shifted the burden to the plaintiffs to negate the applicability of the doctrine because the defendants provided no evidence that an ongoing storm produced the black ice on which Belevich allegedly fell. We disagree and address these interrelated claims together.

This appeal requires us to consider the application of the ongoing storm doctrine in the context of summary judgment and its attendant burden-shifting. In Kraus v. Newton , 211 Conn. 191, 197–98, 558 A.2d 240 (1989), our Supreme Court adopted the ongoing storm doctrine relating to the duty to protect invitees upon one's property when a snowstorm is in progress at the time of the plaintiff's alleged injury. The court defined the doctrine as follows: "[I]n the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.⁷ To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical. Our decision, however, does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended or whether a plaintiff's injury has resulted from new ice...