Escourse v. 100 Taylor Ave., LLC

• Decision Date: 10 June 2014
• Docket Number: No. 35528.,35528.
• Court: Connecticut Court of Appeals
• Parties: Teanna ESCOURSE et al. v. 100 TAYLOR AVENUE, LLC, et al.

150 Conn.App. 819

92 A.3d 1025

Teanna ESCOURSE et al.

v.100 TAYLOR AVENUE, LLC, et al.

No. 35528.

Appellate Court of Connecticut.

Argued Jan. 9, 2014.

Decided June 10, 2014.

Paul L. Brozdowski, Bridgeport, for the appellants (plaintiffs).

James A. Budinetz, with whom was David W. Case, Hartford, for the appellee (defendant Gennaro Cappuccia).

DiPENTIMA, C.J., and GRUENDEL and BEACH, Js.

DiPENTIMA, C.J.

The plaintiffs, Teanna Escourse, through her parents and next friends, and her parents, Gillian Escourse and Christopher Fearon, individually, appeal from the summary judgment rendered by the trial court in favor of the defendant Gennaro Cappuccia.¹ On appeal, the plaintiffs claim that the court improperly granted the motion for summary judgment because (1) the defendant failed to meet his burden of showing the absence of any genuine issue of material fact, and (2) there was an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.² We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In the early morning of January 1, 2011, Teanna Escourse, then sixteen years old, was struck by a hit and run driver while walking along the shoulder of Taylor Avenue in the southbound lane of travel in front of 100 Taylor Avenue in Norwalk. The plaintiffs brought a five count complaint against multiple defendants: 100 Taylor Avenue, LLC, the owner of property located at 100 Taylor Avenue; Christopher Condors, the owner of property with a parking lot located diagonally across the street from 100 Taylor Avenue at 97 Taylor Avenue; the city of Norwalk; and the defendant, the owner of property with two parking lots located directly across the street from 100 Taylor Avenue at 103 Taylor Avenue. The second count of the operative complaint was directed against the defendant. The plaintiffs alleged, inter alia, that Teanna Escourse was forced to walk along the shoulder of the road, eventually resulting in injuries and damages, because the defendant was negligent “in that [he] plowed the snow that had accumulated on his property across the street into the southbound lane of traffic on Taylor Avenue, the southbound shoulder of the roadway, and onto the sidewalk abutting 100 Taylor Avenue, thereby rendering the sidewalk impassible to pedestrians....” ³

On November 27, 2012, the defendant filed a motion for summary judgment, arguing that neither he nor anyone on his behalf plowed snow from his property across the street, onto the shoulder of the roadway, and onto the sidewalk in front of 100 Taylor Avenue. In support of his motion, the defendant provided, among other things, affidavits from himself and his snow removal contractor, James O'Brien, as well as deposition testimony from Vidal Gonez, a Norwalk police officer. The plaintiffs objected, arguing that the evidence they submitted, principally a photograph depicting the conditions in front of 100 Taylor Avenue at the time of the incident and deposition testimony from Robert Schriver, the owner of property located at 100 Taylor Avenue, raised a genuine issue of material fact as to whether the defendant had plowed snow from his property onto the sidewalk in front of 100 Taylor Avenue.

The court granted the motion for summary judgment, finding that the “unequivocal” affidavits submitted by the defendant showed that there was no genuine issue of material fact as to “liability and proximate cause with respect to the defendant....” The court further found that the plaintiffs failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact because the photographand deposition testimony submitted by them “amounted to nothing more than unsubstantiated assumptions as to the involvement of the defendant.” This appeal followed. Additional facts will be set forth as necessary.

“The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. 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.... 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 a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact ... [is] a fact which will make a difference in the result of the case.... Finally, the scope of our review of the trial court's decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312–13, 77 A.3d 726 (2013).

I

The plaintiffs first claim that the court improperly granted the motion for summary judgment because the defendant failed to meet his burden of showing the absence of any genuine issue of material fact. The plaintiffs contend that the “self-serving, conclusory” affidavits submitted by the defendant in support of his motion for summary judgment fail to show the absence of any genuine issue of material fact because they “merely deny the allegations in the complaint....” We are not persuaded.

The following additional facts are necessary for our discussion. The defendant submitted two affidavits in support of his motion for summary judgment: one from himself and another from O'Brien, his snow removal contractor. In his personal affidavit, the defendant averred that he uses, owns and operates a personal plow truck to remove snow from his property. He also averred that neither he nor anyone on his behalf plowed or placed “any snow on either the southbound lane of traffic on Taylor Avenue or onto the southbound shoulder of the roadway or on[to] the sidewalk in front of 100 Taylor Avenue ... at any time up to and including January 1, 2011....” He further averred that, with respect to a snowstorm that ended on December 27, 2010, he plowed that snow from his parking lots to separate grass areas on his property. In his affidavit, O'Brien averred that he did not plow snow at the defendant's property following the December 27, 2010 snowstorm, but that he does plow snow for the defendant when he is away on vacation. He further averred that at “no time up to and including January 1, 2011” had he plowed snow from the defendant's property to either the southbound lane of traffic on Taylor Avenue or onto the southbound shoulder of the roadway or onto the sidewalk in front of 100 Taylor Avenue.⁴ The court found that the affidavits submitted by the defendant were sufficient to demonstrate the nonexistence of a genuine issue of material fact as to his liability or proximate cause. We agree.

The plaintiffs' claim rests in large part on our decision in Gambardella v. Kaoud, 38 Conn.App. 355, 660 A.2d 877 (1995). That case involved a slip and fall on an allegedly defective sidewalk. Id. at 356, 660 A.2d 877. There, the plaintiffs alleged that the defendants “caused and/or did allow sand, sticks, and debris to accumulate on said walkway, thereby covering and concealing from view the cracked surface....” (Internal quotation marks omitted.) Id. at 359, 660 A.2d 877. That allegation, we concluded, was “of a positive act by the defendants, which, if proved at trial, could form the basis for the defendants' liability in negligence....” Id. We further concluded that summary judgment was inappropriate because the defendants failed to adduce evidence to establish the absence of a factual dispute. Id. In support of that conclusion, we explained: “The only evidence produced in connection with the plaintiffs' allegations that the defendants had actively caused the unsafe condition of the sidewalk was in the form of affidavits submitted by the defendants. In these affidavits it was averred that none of the defendants had created any condition on the sidewalk that was unsafe, nor had any of the defendants created or maintained any situation that caused the sidewalk to become multi-angled, uneven, cracked, and in a state of disrepair. These averments are little more than denials of the facts alleged in the plaintiffs' complaint. Denials of the allegations in the complaint are an insufficient basis for the rendition of summary judgment.” Id. at 359–60, 660 A.2d 877.

Citing Gambardella, the plaintiffs argue that the affidavits submitted by the defendants merely were denials of the allegations in their complaint, and thus, insufficient to establish the nonexistence of a genuine issue of material fact. The analogy the plaintiffs seek to draw to Gambardella is unpersuasive. As discussed previously, the defendants in Gambardella denied allegations of negligence by means of personal affidavits, but critically, they did not challenge the factual basis of those allegations. That is not the case here. Rather than deny that he did not plow snow across the street, the defendant specifically averred in his personal affidavit that following the December 27, 2010 snowstorm, he plowed snow from his parking lots to grass areas on his property. In addition, O'Brien averred that he did not plow in the area of Taylor Avenue up to and including January 1, 2011. In doing so, the defendant not only provided detailed facts, separate from the allegations, to support his denial of liability, but also demonstrated the nonexistence of any genuine issue as to whether he plowed snow from his property onto the sidewalk. Gambardella does not stretch so far as to discount, wholesale, personal affidavits that assert admissible facts, made on...