Genco v. Connecticut Light and Power Co., 3937

• Decision Date: 22 April 1986
• Docket Number: No. 3937,3937
• Court: Connecticut Court of Appeals
• Parties: Laura Lee GENCO v. CONNECTICUT LIGHT AND POWER COMPANY.

Page 58

508 A.2d 58

7 Conn.App. 164

Laura Lee GENCO v. CONNECTICUT LIGHT AND POWER COMPANY.

No. 3937.

Appellate Court of Connecticut.

Argued Dec. 13, 1985.

Decided April 22, 1986.

Thomas L. Nadeau, Bridgeport, for appellant (plaintiff).

James K. Robertson, Jr., Waterbury, for appellee (defendant).

Before DUPONT, C.J., and BORDEN and DALY, JJ.

DALY, Judge.

The plaintiff initiated this action by a complaint in two counts, negligence and nuisance, to recover damages for personal injuries sustained as a result of a diving accident in a lake owned by the defendant. ¹ From the granting of a summary judgment, on both counts, in favor of the defendant, the plaintiff has appealed.

Certain facts are not in dispute. The defendant, Connecticut Light and Power Company, is the owner of Candlewood Lake, located in the southwestern part of the state and purported to be Connecticut's largest lake. Abutting the lake are approximately 3000 private homes, an inn, several marinas, a state park and boat launch, and five municipal beaches. The lake, which is man-made, is used for recreational purposes such as swimming, diving, boating and fishing. The general public has access to the lake from the state park. Residents of five municipalities, and some others, have access to the municipal beaches. Inhabitants of the private homes have access to the lake over their land abutting the lake as do patrons of the inn and the marinas. While the municipalities charge their patrons a small fee for the use of their beaches, the defendant does not charge the users.

The plaintiff, Laura Lee Genco, was seriously injured when she dove into the lake and struck its bottom. Her complaint rests upon her allegations that the defendant failed to maintain a safe recreational level of water in the lake, failed adequately to warn users of the lake of its unsafe depth, and failed to abate a nuisance.

The defendant moved for summary judgment under General Statutes § 52-557g, ² alleging that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. The trial court rendered a summary judgment in favor of the defendant, holding that General Statutes § 52-557g afforded the defendant immunity on both counts and further holding that the statute was constitutional.

In opposing the defendant's motion for summary judgment on the ground that material factual disputes exist, the plaintiff relies principally on the depositions of various officials associated with facilities at the lake. The plaintiff's claim of error, however, still founders upon her failure to demonstrate that there is a material fact in issue, in accordance with summary judgment procedures outlined in Practice Book §§ 380 and 382. ³ Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 10, 459 A.2d 115 (1983). "A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law.... When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book] § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." (Citations omitted.) Id., 11-12, 459 A.2d 115.

The plaintiff claims that certain facts are in dispute: whether the land around the lake is made "available" to the public; whether public availability of the lake is offered to those who must trepass over private land to gain access; and whether the legislature intended, under the statute, to prohibit the owner but not intermediaries from charging fees to users.

"Once the moving party has presented evidence in support of the motion for summary judgment, 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....' " Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984), quoting Bartha v. Waterbury House Wrecking Co., supra, 12, 459 A.2d 115. The disputed fact or facts must be material. A material fact is simply a fact which will make a difference in the result of the case. United Oil Co. v. Urban i Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

In order to come within the purview of General Statutes § 52-557g(a), the defendant must establish that it is an owner of land available to the public without charge for recreational purposes. In reviewing the record, we conclude that the defendant meets the requirements of § 52-557g(a) and the statutory definitions as set forth in General Statutes § 52-557f. ⁴

Contrary to what the plaintiff argues, signs posted by the defendant restricting use in certain locations on the lake (near a dangerous waterfall overlook, for example) do not put a material fact in issue. Further, the plaintiff incorrectly claims that the defendant did not make the lake available to the public. Affidavits submitted by the defendant firmly establish that Candlewood Lake is available to the public for many recreational uses with various means of access, including a state park, marinas and municipal beaches. It is undisputed that Candlewood Lake is one of the major recreational areas in the state and is used by people numbering in the tens of thousands.

A review of the legislative history, ⁵ reveals that the clear purpose of § 52-557g is an attempt to satisfy the public's need for recreational and open space by encouraging private land owners, through limiting their liability, to open their land to public use. The government alone cannot meet this need. "[W]e have long depended and will continue to depend upon the generosity of private owners of land and water to open their property to the use and enjoyment of their fellow citizens.... So this act here is to allow limited liability ... of Connecticut property owners to open their land for public use without charge." 13 H.R.Proc., Pt. 4, 1971 Sess., p. 1805 (remarks of Rep. David Lavine).

For the court to hold that the plaintiff's accident "falls outside the statute would have the effect of discouraging landowners from opening their lands for any public use free of charge. It would require that a landowner either open up his land for all purposes, or greatly increase the number of security personnel to ensure that only permitted uses occur in order to secure the protection of the statute." (Emphasis in original.) Jennett v. United States, 597 F.Sup. 110, 113 (D.Conn.1984).

The plaintiff argues that the lake can hardly be considered "available to the public" if people must trespass over some portion of its perimeter to get there. As presented in the defendant's affidavits, numerous facilities such as the state park, town beaches, and marinas, are maintained on the lake to provide extensive availability to the public. The fact that, at other points on the perimeter of the lake, one must trespass in order to gain access to the lake, does not remove the lake from the purview of the statute.

The defendant leases land to marinas and town beaches, which in turn charge small fees to their users to cover their costs of maintenance and operation. The plaintiff claims that these leases and fees constitute "charges" within the meaning of § 52-557g(a). General Statutes § 52-557h, which is cross referenced to § 52-557g(a), provides that an owner is liable "(2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section." (Emphasis added.) Thus, under § 52-557h, any financial arrangements made between the defendant and the state and the five towns utilizing the facilities are not deemed charges.

The defendant produced affidavits of persons managing lake-front facilities which reveal that the defendant never charged any fee to users. General Statutes § 52-557f defines "charge" as "the admission price or fee asked in return for invitation or permission to go upon land." Fees charged by marinas, boat docks, or private facilities under a lease with the defendant do not constitute "charges" within the meaning of General Statutes § 52-557f. Livingston v. Pennsylvania Power & Light Co., 609 F.Sup. 643, 648 (D.C.Pa.1985). In construing a similar recreational use statute in Pennsylvania, the court in Livingston explained that "charge" connotes a " ' "quid pro quo," i.e., a charge in exchange for permission to enter that land at that time.' " (Emphasis in original.) Id., quoting Hahn v. Commonwealth, 18 Pa.D. & C.3d 260, 265 (1980). The fees which the plaintiff claims constitute a charge cannot logically be considered such a "quid pro quo." The court in Livingston further held that "[t]he only way to avoid inconsistent application of the Act ... is to interpret the word 'charge' ... as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes." Livingston v. Pennsylvania Power & Light Co., supra. A fee charged by a marina to the boat owners who dock their boats at the marina is not an admission price but merely an operational or maintenance charge. Furthermore, as provided in General Statutes § 52-557h(2), fees charged by the entities, public or private, which abut the lake do not make the defendant liable as an "owner of land [who] charges the...