Conway v. Town of Wilton

• Decision Date: 12 September 1995
• Docket Number: No. 13524,13524
• Citation: 664 A.2d 327,39 Conn.App. 280
• Court: Connecticut Court of Appeals
• Parties: , 103 Ed. Law Rep. 305 Amy Jeanne CONWAY v. TOWN OF WILTON et al.

Page 327

664 A.2d 327

39 Conn.App. 280, 103 Ed. Law Rep. 305

Amy Jeanne CONWAY v. TOWN OF WILTON et al.

No. 13524.

Appellate Court of Connecticut.

Argued May 22, 1995.

Sept. 12, 1995.

David T. Grudberg, with whom, on the brief, was Ira B. Grudberg, New Haven, for appellant (plaintiff).

Raymond J. Plouffe, Jr., with whom, on the brief, was Kevin S. Coyne, Bridgeport, for appellees (named defendant et al.).

Hugh W. Cuthbertson, New Haven, with whom, on the brief, was Dana Shaw MacKinnon, Hartford, for appellee (defendant Connecticut Association of Schools).

Before LANDAU, SCHALLER and SPEAR, JJ.

SPEAR, Judge.

The plaintiff, Amy Jeanne Conway, brought an action against the town of Wilton (town), David Dixon ¹ and the Connecticut Association of Secondary Schools (association), ² for personal injuries sustained while participating in a state high school tennis tournament on premises owned by the town and sponsored by the association. The trial court granted the defendants' motions for summary judgment, ruling that they were immune from liability pursuant to the Connecticut Recreational Land Use Act, General Statutes § 52-557f et seq. ³

On appeal, the plaintiff claims that the trial court improperly granted the motions for summary judgment because (1) the act as applied to the plaintiff violates article first, § 10, of the Connecticut constitution, ⁴ (2) the association owed a duty to the plaintiff that is independent of the act, and (3) Dixon and the town failed to make the premises "available to the public," and, therefore, are not entitled to statutory immunity. We disagree and affirm the judgment of the trial court. ⁵

"The standard for appellate review of a trial court's decision to grant a summary judgment motion is well established. Practice Book § 384 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. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984) ]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978). Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982)." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).

The facts, as viewed in the light most favorable to the plaintiff, are as follows. On June 9, 1986, the Connecticut Interscholastic Athletic Conference (conference) ⁶ held a championship tennis tournament for high school girls at the Wilton High School tennis courts. No fee was charged for the use of the tennis courts. During the tennis tournament, the plaintiff, a competitor in the tournament, fell because of an alleged defect in the courts and sustained serious injuries to her knee and ankle. In her personal injury action, the plaintiff alleged that the proximate cause of her injuries was the negligence of Dixon and his staff in maintaining the tennis courts and the negligence of the association in selecting the allegedly faulty court for the tournament.

I

We first address the plaintiff's claim that the recreational use statute violates the "open courts" provision of article first, § 10, of the Connecticut constitution. ⁷ She asserts that, "[i]f viewed as a limitation on the right to redress for an injury caused by negligence, the restriction under consideration stands contrary to the mandate of article first, § 10, and thus must fall." Gentile v. Altermatt, 169 Conn. 267, 284, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 631 (1976).

This court previously rejected a similar constitutional attack on the recreational use statute in Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 508 A.2d 58 (1986). In Genco, we concluded that the statute "does not restrict the right to redress for an actionable injury but, rather, redefines the injury or the class of persons injured to which this constitutional right of redress attaches.... Thus, the right of redress for injury is constitutional in its nature but the nature of a specific injury is a right derived from the common law or statute.... A statute limiting the liability of owners who provide the public with park area for outdoor recreational purposes is a reasonable exercise of legislative power, and it does not violate the constitutional provision that the courts shall be open to every person for redress of any injury." (Citations omitted; internal quotation marks omitted.) Id. at 173-74, 508 A.2d 58.

General Statutes § 52-557g provides that an injury caused by negligence or nuisance on land provided for public recreational use is not an actionable injury. Consequently, such injury is not subject to preservation under article first, § 10, of the Connecticut constitution. "What is of constitutional dimensions, then, is the right of redress and not the nature of the particular injury for which redress is sought. Stated differently, the right to redress in the courts must remain inviolate but it does not attach unless one suffers a recognized injury." Gentile v. Altermatt, supra, 169 Conn. at 284, 363 A.2d 1. Consistent with prior cases, we conclude that the act does not violate article first, § 10, of the Connecticut constitution.

II

The plaintiff next claims that during the tennis tournament the association owes a duty to the athletes that is independent of its role as "owner," and that such duty is not affected by the immunity protection of § 52-557g. She argues that a public school "authority owes a duty of ordinary care under the circumstances to participants in ... athletic events sponsored, or conducted under the auspices of, such authority." 35 A.L.R.3d 734 (1971). ⁸ The alleged duty turns on the relationship between an academic institution and its students. The plaintiff further claims that this issue involved a finding of fact, and that the trial court erroneously rendered summary judgment in light of the existence of a disputed fact. We disagree.

General Statutes § 52-557h provides only two exceptions to immunity from liability under this statute: (1) if a fee is charged for the use of the land; or (2) if the landowner wilfully or maliciously fails to warn against a dangerous condition. The plaintiff does not allege that either of the exceptions apply. It is well settled that a court cannot read additional exceptions into a statute where the legislature has neglected or chosen not to do so. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 396, 618 A.2d 1340 (1993); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975). Furthermore, in Manning v. Barenz, 221 Conn. 256, 603 A.2d 399 (1992), our Supreme Court expressly rejected a similar claim. The court in Manning held that the defendant, employees of the landowner, "must be considered within the definition of 'owners' by reason of their being 'persons in control of the premises'.... To hold otherwise would render the statute meaningless. The plaintiffs could completely bypass this legislation by simply bringing suit against [an owner's employees]." Id., at 262, 603 A.2d 399. The end result could be that the protected parties would be liable for the damages from which they are immune by § 52-557g.

To hold that the association owed a supplemental duty of care would effectively circumvent § 52-557g. That statute explicitly defines an injury on land open to the public for recreational purposes as nonactionable. It provides that "no duty of care" is owed to persons entering the land for recreational purposes and that the landowner does not "[m]ake any representation that the premises are safe for any purpose." General Statutes § 52-557g(b)(1). The statute also provides that the landowner does not "assume responsibility for or incur liability for any injury...." General Statutes § 52-557g(b)(3). The association falls within the statutory definition set forth in § 52-557f(3) as an "owner" by being a "person in control of the premises." The association is consequently immune from liability for the plaintiff's injuries that resulted from her fall on premises covered by the recreational use statute. The plaintiff's claim that an issue of material fact exists is without merit because "[t]he question whether the statute applies is a matter of law and, since no genuine issue of material facts relevant to this determination exists, summary judgment is appropriate." Jennett v. United States, 597 F.Supp. 110, 112 (D.Conn.1984).

III

The plaintiff's remaining claim is that a genuine issue of material fact existed as to whether the property was made available to the public as required by § 52-557g. We disagree.

In order to prevail on their motion for summary judgment, Dixon and the town, had the burden of proving that the land was made available to the public for the purposes of recreation and that no fee was charged for the use of the premises pursuant to § 52-557g. In support of their motion, they submitted the affidavits of town attorney...