Hammond v. Dzindzalet, No. CV 04 5000001 (CT 11/23/2005)

• Decision Date: 23 November 2005
• Docket Number: No. CV 04 5000001,CV 04 5000001
• Court: Connecticut Supreme Court
• Parties: Clara M. Hammond v. Frederick Dzindzalet et al. Opinion No.: 91145

Page 1

Unpublished Opinion

Clara M. Hammond v. Frederick Dzindzalet et al. Opinion No.: 91145

No. CV 04 5000001

Superior Court of Connecticut

Judicial District of New Haven at Meriden

November 23, 2005

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

CARL E. TAYLOR, JUDGE.

I Background

The plaintiff seeks damages due to the alleged negligence of the defendants for injuries she suffered in a slip and fall on accumulated snow and ice in front of the defendants' home in Wallingford, Connecticut. The plaintiff was a newspaper delivery person who, in the course of delivering a newspaper to the defendants' home, fell on the soft shoulder of the roadway abutting their property line. The defendants claim that the location of the alleged snow and ice, and resulting fall in this case, occurred on property owned by the municipality and not the defendants and, therefore, liability may not attach to them as a matter of law. The plaintiff, however, claims that this property was used regularly by the defendants as a parking area and that they therefore exercised possession and control of the property sufficient for a duty of care to exist under Connecticut law.

II Discussion

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." Practice Book §17-49. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005).

"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 . . ." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." (Citation omitted; internal quotation marks omitted.) Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 315, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).

A motion for summary judgment, however, "is particularly ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation." (Internal quotation marks omitted.) Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004). "A determination of negligence is necessarily one of fact." Maffucci v. Royal Park Ltd. Partnership, 42 Conn.App. 563, 568-69, 680 A.2d 333 (1996), rev'd on other grounds, 243 Conn. 552, 707 A.2d 15 (1998). 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 plaintiff cites the case of Corvo v. Waterbury as authority for the proposition that "[o]ne who asserts and maintains control of property may be liable for defective conditions existing thereon though he have in fact no title to it." (Internal quotation marks omitted.) Corvo v. Waterbury, 141 Conn. 719, 725, 109 A.2d 869 (1954). In the defendants' reply, they distinguish Corvo as a case involving nuisance and not negligence. Although this is correct, the court in Corvo cited numerous negligence cases as authority for its holding.¹ Therefore, although Corvo may be distinguishable on its face, its holding has its genesis in negligence cases. This historical approach appears to continue in more recent rulings, such as those cited by the defendants.²

III Conclusion

In the present case, the plaintiff claims that the defendants exercised possession and control over the property where the fall and resulting injuries occurred. This is a disputed factual question, and if sufficient facts are shown that the...