Maffucci v. Royal Park Ltd. Partnership

• Decision Date: 13 August 1996
• Docket Number: No. 14586,14586
• Citation: 42 Conn.App. 563,680 A.2d 333
• Court: Connecticut Court of Appeals
• Parties: Michael MAFFUCCI v. ROYAL PARK LIMITED PARTNERSHIP et al.

Page 333

680 A.2d 333

42 Conn.App. 563

Michael MAFFUCCI v. ROYAL PARK LIMITED PARTNERSHIP et al.

No. 14586.

Appellate Court of Connecticut.

Argued June 3, 1996.

Decided Aug. 13, 1996.

Joel M. Ellis, for appellant (plaintiff).

Barbara J. Sheedy, New Haven, for appellee (named defendant).

Brian T. Henebry, Waterbury, with whom were James K. Robertson and, on the brief, Maureen D. Cox, for appellee (defendant Northeast Utilities).

Janet C. Spegele, Middletown, Cynthia L. Amara and Stephen Ostrach, Boston, MA, filed a brief for Connecticut Business and Industry Association et al. as amici curiae.

Before FOTI, SPEAR and FRANCIS X. HENNESSY, JJ.

SPEAR, Judge.

In this negligence action, the plaintiff appeals from the judgment of the trial court granting the defendants' ¹ motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly concluded that no genuine issue of material fact existed as to (1) whether the defendants had actual or constructive notice as to the presence of trespassers, and (2) whether posted signs adequately warned the public as to the danger that existed on the property. We conclude that genuine issues of material fact did exist and therefore reverse the judgment of the trial court.

The pleadings, accompanying affidavits and deposition testimony presented to the trial court reveal the following relevant facts. On January 15, 1991, the plaintiff was severely injured when he came into contact with an energized circuit in a switchgear ² located on the premises of the old Royal Typewriter building in Hartford. The plaintiff and Robert Fricke entered the switchgear with the intent to remove copper. The plaintiff had removed six copper bars prior to being injured. On the date of the injury, Royal Park owned the building, and Northeast Utilities owned and operated the switchgear. Prior to the date of the injury, the electrical power from the switchgear to the building had been disconnected, but the electrical power still flowed to the switchgear.

The building was bordered by a fence approximately eight feet high that bore "No Trespassing" signs. The fence, however, had an open gate through which the plaintiff and Fricke gained access to the building. The switchgear, located on the west side of the property, contained signs on its east and south sides that read "Danger High Voltage." The plaintiff, who was injured on the north side of the switchgear, claims that he never saw the posted warnings. Moreover, a padlock used to secure the switchgear had been cut and left on the ground.

The deposition testimony of the plaintiff and Fricke revealed the following. From a car on Francis Court, the plaintiff and Fricke had observed the activities at the building for a period of two weeks prior to the date of their entry to satisfy themselves that they could gain access and take the copper. During this period, the plaintiff and Fricke observed people near the switchgear with carts and trucks looking for copper. Fricke testified that they believed the building was abandoned because there were police in the vicinity of where people were taking copper and the police did not interfere with their activity. Fricke also testified that people leaving the property told them that they were receiving over $1 per pound for the copper and that the property appeared abandoned.

Both men stated in their depositions that they never saw a "No Trespassing" sign on the fence. The plaintiff also testified that every cabinet on the side of the switchgear where he was injured was open and that inside there were obvious signs that others had been there to remove copper. The plaintiff further claimed that he saw no warning signs alerting him to the danger of electrocution, but that, even had he seen such signs, he still would have entered because he assumed, based on his observations of dangling wires and other signs of abandonment, that the electrical power had been disconnected.

Further deposition testimony revealed the following. Robert Larson, a claim representative for Connecticut Light and Power Company (CL & P), a subsidiary of Northeast Utilities, testified that he entered the building next to the switchgear on the day of the accident and found that "it looked like there had been people in here on a regular basis.... And [the supervisor] mentioned to me or stated to me at the time that they knew that there had been people in. They had been trying to secure the building. And everything that they did to secure it was damaged and people got in with all the precautions that they had taken." Moreover, Randolph Brown, vice president and general partner of Royal Park, testified that employees had reported to him the existence of trespassers.

The plaintiff filed a negligence action in two counts against each defendant. ³ On August 15, 1994, the defendants filed a joint motion for summary judgment. The defendants attached affidavits, deposition testimony, and a memorandum of law in support of their motion. In response, the plaintiff filed a memorandum of law in opposition to the defendants' joint motion for summary judgment. After considering the pleadings, depositions, and accompanying affidavits, the trial court granted the defendants' motion.

In granting summary judgment for Royal Park, the trial court found that the only duty Royal Park owed to the plaintiff trespasser was a duty not to injure intentionally. The court based its decision on its finding that "the record is void of evidence that the switchgear had been subject to any prior intrusions by trespassers...." Because the trial court found that Royal Park did not have any notice as to the existence of trespassers, the court rejected the plaintiff's claim that Royal Park had a duty to exercise reasonable care to warn trespassers of the dangerous conditions that existed on the property.

In granting summary judgment for Northeast Utilities, the trial court found that there was "no evidence that the defendant ... had prior knowledge or should have known that trespassers were entering the switchgear prior to the incident." The trial court, therefore, rejected the plaintiff's claim that Northeast Utilities owed a duty of greater care than that applicable to undiscovered trespassers. The court, in the alternative, found that even if Northeast Utilities had notice of trespassers entering the switchgear, the evidence established that there were sufficiently clear warnings indicating the dangers and risk involved. This appeal followed.

The plaintiff claims that the trial court improperly granted the defendants' motion for summary judgment because genuine issues of material fact exist. We agree.

" 'The standard for appellate review of a trial court's decision to grant a summary judgment motion is well established. Practice Book § 384 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.... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such issue.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts.' " (Citations omitted.) Citicorp Mortgage, Inc. v. Porto, 41 Conn.App. 598, 601, 677 A.2d 10 (1996); see also Home Insurance Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995); Columbia Federal Savings Bank v. International Site Consultants, 40 Conn.App. 64, 72, 669 A.2d 594, cert. denied, 236 Conn. 910, 671 A.2d 824 (1996).

It is also well established that "[s]ummary judgment procedure is especially 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.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975); see also Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984); DiUlio v. Goulet, 2 Conn.App. 701, 703, 483 A.2d 1099 (1984). A determination of negligence is necessarily one of fact. Michaud v. Gurney, supra, at 434, 362 A.2d 857; Cappiello v. Haselman, 154 Conn. 490, 495, 227 A.2d 79 (1967); Balboni v. Stonick, 2 Conn.App. 523, 527, 481 A.2d 82 (1984). As such, "[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972); see also Amendola v. Geremia, 21 Conn.App. 35, 37, 571 A.2d 131, cert. denied, 215 Conn. 803, 574 A.2d 217 (1990).

I

The plaintiffs first assert that a genuine issue of material fact exists as to whether the defendants had actual or constructive notice as to the presence of trespassers on the property. The issue of actual or constructive notice directly relates to the duty of care owed by a landowner to trespassers.

Ordinarily, " 'the possessor of real estate owes no duty to trespassers ... to keep the property in a reasonably safe condition for their use....' " Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 328, 612 A.2d 1197 (1992), quoting D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) § 47, p. 110. The only duty a landowner owes to a trespasser whose presence is undiscovered is a duty not to injure intentionally. Morin v. Bell Court Condominium Assn., Inc., supra, at 328, 612 A.2d 1197; see also W. Prosser & W. Keeton, Torts (5th Ed.) § 60, p. 416. Our courts have,...