Maffucci v. Royal Park Ltd. Partnership

• Decision Date: 27 January 1998
• Docket Number: No. 15577,15577
• Court: Connecticut Supreme Court
• Parties: Michael MAFFUCCI v. ROYAL PARK LIMITED PARTNERSHIP et al.

Page 15

707 A.2d 15

243 Conn. 552

Michael MAFFUCCI v. ROYAL PARK LIMITED PARTNERSHIP et al.

No. 15577.

Supreme Court of Connecticut.

Argued Oct. 29, 1997.

Decided Jan. 27, 1998.

Lisa M. Faris and James K. Robertson, Jr., with whom were Brian T. Henebry and, on the brief, Brian W. Smith, Barbara J. Sheedy, New Haven, and Maureen D. Cox, Waterbury, for appellants (defendants).

Joel M. Ellis, Glastonbury, for appellee (plaintiff).

Before CALLAHAN, C.J., and NORCOTT, KATZ, PALMER and McDONALD, JJ.

CALLAHAN, Chief Justice.

This appeal arises out of an action for personal injuries sustained by the plaintiff, Michael Maffucci, when he entered an electrical switchgear cabinet, in a bank of such cabinets, located on property owned by the named defendant, Royal Park Limited Partnership (Royal Park), with the intent to steal copper. The switchgear cabinet was owned and maintained by Connecticut Light and Power Company (CL&P), an operating subsidiary of the defendant Northeast Utilities. The plaintiff was severely injured when he came into contact with a live electrical circuit inside the switchgear cabinet. The sole issue on appeal is whether the Appellate Court was correct in concluding that the trial court should not have granted the defendants' joint motion for summary judgment. ¹ Maffucci v Royal Park Ltd. Partnership, 42 Conn.App. 563, 572, 680 A.2d 333 (1996). Although this issue has many subparts, it is the defendants' claim that because there are no facts in the record indicating that they had any knowledge of persistent intrusions by trespassers upon or into the switchgear cabinets, the only duty owed to the plaintiff was to refrain from injuring him " 'intentionally, or by willful, wanton or reckless conduct.' " Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 328, 612 A.2d 1197 (1992). The defendants argue that summary judgment was appropriate because the plaintiff has alleged no violation of that limited duty in his complaint. We agree.

"The standard of review for summary judgment is well established. '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.... 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 an 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 [in support of a motion for summary judgment].' ... Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995); see also Practice Book § 384." Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997).

The facts established by the pleadings, affidavits and other proof, viewed in the light most favorable to the plaintiff, are as follows. On the date that the plaintiff sustained his injuries, Royal Park owned the Old Royal Typewriter building (building) in Hartford and the 9.7 acre parcel of property upon which the building was located. On that same property, adjacent to the building, was a bank of large electrical switchgear cabinets owned and maintained by CL&P, an operating subsidiary of Northeast Utilities. The switchgear was contained in several metal cabinets and located outside of the building. The entire property was protected by an eight foot fence topped with barbed wire and marked with "No Trespassing" signs in both English and Spanish. Two signs warning, "Danger, High Voltage," were located on the switchgear cabinets themselves.

In the weeks prior to the plaintiff's injuries, he and a cohort, Robert Fricke, had heard that the building had been abandoned. The plaintiff and Fricke had driven to the area of the building for surveillance purposes and had watched individuals going into the building and exiting with copper wire. The fence surrounding the property contained an open gate through which people wishing to enter the property could gain access. According to the plaintiff, some of those people removing copper wire were driving pick-up trucks, while others used grocery carts to remove rolls of wire. The plaintiff and Fricke spoke to some of the persons leaving the property who indicated to the plaintiff and Fricke that they were selling the copper wire for $1 per pound and that the building was abandoned.

On January 15, 1991, the plaintiff and Fricke entered Royal Park's property with the admitted intention of removing copper in order to sell it. As they arrived, they saw an individual throwing rolls of copper wire out of one of the building's windows and placing them into shopping carts. After they entered the open gate, the plaintiff and Fricke observed a man with a copper bar leaving the area in which the switchgear cabinets were located.

Upon entering the area of the switchgear cabinets, the plaintiff noted that the padlocks had been cut from the cabinets containing the switchgear and that the cabinets were open. It also appeared that some copper already had been removed from the cabinets. The plaintiff succeeded in removing six bars over the course of one hour when he came into contact with an energized circuit in the switchgear and was injured. The plaintiff denied having seen the posted warnings, but admitted in his deposition that he would have ignored the warnings if he had seen them. ²

As a result of his injuries, the plaintiff filed a negligence action in two counts against the defendants. ³ The defendants subsequently filed a joint motion for summary judgment with attached affidavits, deposition testimony and a memorandum of law in support of their motion. In their supporting memorandum of law, the defendants argued, inter alia, that, despite viewing the facts in the light most favorable to the plaintiff, there were no facts in the record indicating that the defendants knew, or should have known, of any trespassers into or upon the switchgear cabinets prior to the time of the plaintiff's injury. Consequently, the defendants argued, they could not be held liable for the negligent acts the plaintiff alleged in his complaint and, therefore, they were entitled to summary judgment. ⁴

In response, the plaintiff filed a memorandum of law in which he asserted that there existed "a genuine issue of fact as to whether the defendants had actual and/or constructive knowledge that persons were constantly intruding on the premises of the Old Royal Typewriter building curtilage, inclusive of the subject switchgear." The trial court granted the defendants' motion, concluding that "the record is void of evidence indicating that the switchgear had been subject to any prior intrusions by trespassers.... In advocating [his] position, the plaintiff's focus is on the property as a whole which includes standing buildings. This court rejects such a wide focus and makes its decision by analyzing the facts surrounding the switchgear solely which was the source of the plaintiff's injuries."

The Appellate Court reversed the judgment of the trial court, concluding that "there exist issues of material fact as to whether the defendants had actual or constructive notice as to the presence of trespassers...." Maffucci v. Royal Park Ltd Partnership, supra, 42 Conn.App. at 572, 680 A.2d 333. The Appellate Court based this conclusion on three elements of the deposition testimony presented: (1) the plaintiff and Fricke had witnessed people openly removing copper from the Royal Park property for the two weeks preceding the plaintiff's injuries; (2) the switchgear cabinets were open when the plaintiff and Fricke arrived at the switchgear cabinets, the padlocks already were cut, and there were obvious signs that copper already had been removed; and (3) testimony indicated that Royal Park was aware of prior trespasses to the building. Id., at 571, 680 A.2d 333. We reverse the judgment of the Appellate Court.

I

The first issue presented is whether there is sufficient evidence to create a genuine issue of material fact regarding the defendants' actual or constructive notice of the presence of trespassers. The resolution of this issue initially requires an analysis of the duty owed by a possessor of land to a trespasser. It is well established that a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, ⁵ but has the duty only to refrain from causing injury to a trespasser "intentionally, or by willful, wanton or reckless conduct." ⁶ (Internal quotation marks omitted.) Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. at 328, 612 A.2d 1197. ⁷

There is an equally well established exception to this general rule. "[I]f the owner ... know[s] that the presence of trespassers is to be expected, then the common obligation of exercising reasonable care gives rise to the correlative duty of taking such precautions against injuring trespassers as a reasonable foresight of harm ought to suggest." Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646 (1921); ⁸ see Lucier v. Meriden-Wallingford Sand & Stone Co., 153 Conn. 422, 429, 216 A.2d 818 (1966); Thibodeau v. Connecticut Co., 139 Conn. 9, 14-15, 89 A.2d 223 (1952); McPheters v. Loomis, 125 Conn. 526, 532, 7 A.2d 437 (1939).

The common-law rule governing the duty owed by a possessor of land to known trespassers for dangerous conditions upon the land is clearly...