Keramidas v. Nicolaou

• Decision Date: 06 November 2012
• Docket Number: CV126012017.
• Parties: Dimi KERAMIDAS v. Antigoni NICOLAOU.
• Court: Connecticut Superior Court

Dimi KERAMIDAS v. Antigoni NICOLAOU.

No. CV126012017.

Superior Court of Connecticut, Judicial District of New London.

November 6, 2012

UNPUBLISHED OPINION

FACTS

This action arises out of an alleged fall at 35 Dow Street in New London, which caused Dimi Keramidas, the plaintiff, to suffer personal injuries. According to the complaint, the plaintiff was assisting her mother, Antigoni Nicolaou, the defendant up her driveway on January 29, 2010. During that process, the plaintiff alleges, the defendant was not lifting her feet properly, and, as a result, the defendant tripped and fell. The plaintiff alleges that she was injured while attempting to prevent the defendant's fall.

On March 14, 2012, the plaintiff filed a two-count revised complaint sounding in negligence. Count one alleges that the defendant was negligent for failing to properly lift her feet, for failing to listen to instructions, for failing to pay attention to where she was walking, for losing her footing and for failing to warn the plaintiff that she was unstable and going to fall. Count two asserts a premises liability claim.

The defendant filed a motion for summary judgment as to count one on June 22, 2012, on the ground that there are no genuine issues of material fact. In her memorandum of law in support the defendant argues that summary judgment is proper because she owed the plaintiff no duty of care. The plaintiff filed an objection and memorandum in opposition on July 7, 2012. The matter was heard at short calendar on July 23, 2012.

DISCUSSION

" 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." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277 279, 567 A.2d 829 (1989).

" [T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ... [while the] granting of a motion to strike allows the plaintiff to replead his or her case. (Internal quotation marks omitted.) Larobina v McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Accordingly, " the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Id.; accord Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. at 819, 832, 14 A.3d 982 (2011).

" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). However, " [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 existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ... We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ... The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).

In the present case, the defendant argues that to find a duty would be to impose liability on a defendant simply for tripping and falling and for failing to warn a person rendering assistance of an impending fall. The plaintiff argues that, " [c]learly, it was foreseeable that the [d]efendant could fall and pull her daughter down with her if she did not walk with reasonable care." However, the plaintiff also argues that, " [r]ather than let her mother fall, [the plaintiff] tried to save her mother, which caused [the plaintiff] to fall and severely injure herself."

The defendant has not offered any evidence to establish a genuine issue of material fact with regard to whether the plaintiff's injuries allegedly received in a responsive attempt to prevent her mother from falling were a reasonably foreseeable consequence of the defendant's failure to warn or avoid tripping. A court is however " not required to address the first prong as to foreseeability if [it determines], based on the public policy prong, that no duty of care existed." Neuhaus v. DeCholnoky supra, 280 Conn. at 218, 905 A.2d 1135. The existence of a duty therefore depends on public policy considerations.

" A simple conclusion that the harm to the plaintiff was foreseeable ... cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ... While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree ... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 633, 749 A.2d 630 (2000).

" [I]t is well established that Connecticut courts will not impose a duty of care on [a defendant] if doing so would be inconsistent with public policy." Monk v. Temple George Associates, LLC, 273 Conn. 108, 116, 869 A.2d 179 (2005). The courts recognize " four factors to be considered in determining the extent of a legal duty as a matter of public policy: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003).

Addressing the first factor, the plaintiff argues that to impose a duty would be consistent with the expectations of a person who is injured while assisting in this situation, while the defendant argues that imposing a duty would discourage a person in need of assistance from seeking aid. First assuming that the activity in question is assisting the ambulation of an elderly or infirm person, the participants' expectations do not support the imposition of a duty. An elderly or infirm person in this situation would expect that they could seek aid in light of their mobility limitations and thereby guard against the risk of uncontrollable tumbles, deficiencies in balance, or environmental conditions. Moreover, such a person might reasonably assume that one who offers assistance considers himself or herself physically able to do so. In addition, implicit in the...