LaFlamme v. Dallessio
Decision Date | 14 August 2001 |
Docket Number | (AC 20554) |
Court | Connecticut Court of Appeals |
Parties | ROSE LAFLAMME v. JOSEPH DALLESSIO, EXECUTOR (ESTATE OF DOMINIC DALLESSIO) |
Foti, Mihalakos and Hennessy, JS.
Michael W. Levy, for the appellant (plaintiff).
John P. Calabrese, for the appellee (defendant).
The plaintiff, Rose LaFlamme, appeals from the judgment rendered by the trial court following the granting of the motion for summary judgment filed by the defendant, Joseph Dallessio. On appeal, the plaintiff claims that the court (1) improperly concluded that the defendant did not owe her a duty of care based on his control of the subject premises and (2) abused its discretion by declining to rule on her request to amend the pleadings. We affirm the judgment of the trial court.
The plaintiff brought a one count complaint for negligence against the defendant in his representative capacity as executor of the estate of Dominic Dallessio (estate). The plaintiff alleged that she sustained injuries as a result of a fall that occurred on premises owned, possessed and controlled by the estate. On November 1, 1999, the defendant moved for summary judgment on the ground that he was not in possession and control of the premises at the time of the plaintiffs accident and, therefore, did not owe a duty of care to the plaintiff. On November 8, 1999, the plaintiff filed a request to amend her complaint by adding a second count against the defendant in his individual capacity. On January 3, 2000, the court heard oral argument on both motions. On February 10, 2000, the court issued a memorandum of decision granting the defendant's motion for summary judgment. The court did not act on the plaintiffs request to amend.
(Internal quotation marks omitted.) Raboin v. North American Industries, Inc., 57 Conn. App. 535, 537-38, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 505 (2000).
The plaintiff first claims that the court improperly rendered summary judgment because it wrongfully concluded as a matter of law on the basis of the undisputed facts that the defendant did not owe a duty of care to the plaintiff. We disagree.
"Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The issue of whether a duty of care is owed is normally a question of law; Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 660, 691 A.2d 1107 (1997); but under some circumstances "the question of duty involves elements of both fact and law." Raboin v. North American Industries, Inc., supra, 57 Conn. App. 538.
The defendant submitted a probate decree to the court as evidence that Mary Dallessio was in possession and control of the premises on which the plaintiff sustained her injury. Although that decree gave Mary Dallessio the use of the home, it directed her to "grant the executor, upon reasonable notice by him, reasonable access to the house for the purpose of cleaning the house and listing the house with a broker for sale." On the basis of that evidence concerning the executor's access to the subject property upon notice for limited purposes, the court concluded that the defendant did not owe the plaintiff a duty of care.
The plaintiff claims that a second probate decree demonstrated the existence of a genuine issue of material fact concerning the "possession and control" of the premises. The court did not discuss this second decree in its memorandum of decision, and the plaintiff did not file either a motion for articulation or a motion for rectification with respect to that issue.1 The plaintiff also relies on her affidavit in which she attested that Mary Dallessio was merely a tenant and that the defendant was responsible for the care and maintenance of the house. The court treated this as a bare assertion and concluded that it was insufficient to demonstrate a disputed issue of fact. Although the moving party must show the nonexistence of any material fact, an opposing party must substantiate its adverse claims by showing that there is a genuine issue of material fact along with the evidence disclosing the existence of such an issue. Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). The plaintiff has failed to do so.
The plaintiff also argues that the decedent did not specifically devise the subject premises in his will and that General Statutes § 45a-321 (a)2 created a duty in the defendant as a fiduciary. We need not reach the issue of whether the decedent specifically devised the subject premises in his will because we conclude that the type of duty that § 45a-321 (a) creates would still not have precluded summary judgment in this case.
Our Supreme Court has stated that (Citations omitted; internal quotation marks omitted.) Claydon v. Finizie, 7 Conn. App. 522, 526, 508 A.2d 845 (1986), quoting Brill v. Ulrey, 159 Conn. 371, 376, 269 A.2d 262 (1970). The plaintiff, therefore, cannot rely upon § 45a-321 (a) to create a duty on the part of the executor to keep the driveway on the subject premises in repair, as she alleged in her complaint. The executor had neither "possession, care and control of the decedent's real property" nor did he owe the plaintiff a duty of care arising out of that section.
We conclude that the court properly determined that the plaintiff failed to submit evidence disclosing the existence of a genuine issue of material fact in regard to her claim that the defendant had possession and control of the premises and, therefore, owed her a duty. The court properly granted the motion for summary judgment.
The plaintiff next claims that the court abused its discretion in failing to rule on her pending request to amend her complaint. We disagree.
The record reflects that the plaintiff waited approximately two and one-half years after the incident and after the defendant filed his motion for summary judgment to file her request to amend. The court, in rendering summary judgment, noted that it was aware of the request but would not address it since it "was filed subsequent to the motion for summary judgment."
(Citations omitted; internal quotation marks omitted.) AirKaman, Inc. v. Groppo, 221 Conn. 751, 766-67, 607 A.2d 410 (1992).
It was well within the court's discretion to grant or deny the plaintiffs request. The court exercised its discretion by first hearing and ruling on the defendant's motion for summary judgment. Having...
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