Pion v. Southern New England Telephone Co.

• Citation: 691 A.2d 1107,44 Conn.App. 657
• Decision Date: 08 April 1997
• Docket Number: No. 15632,15632
• Court: Appellate Court of Connecticut
• Parties: Jarrett PION v. SOUTHERN NEW ENGLAND TELEPHONE COMPANY.

Page 1107

691 A.2d 1107

44 Conn.App. 657

Jarrett PION v. SOUTHERN NEW ENGLAND TELEPHONE COMPANY.

No. 15632.

Appellate Court of Connecticut.

Submitted on Briefs Jan. 29, 1997.

Decided April 8, 1997.

Timothy C. Spayne, Groton, and Donald E. Leone, Norwich, filed a brief, for appellant (plaintiff).

Eugene A. Cooney and Sharone G. Kornman, Hartford, filed a brief, for appellee (defendant).

Before DUPONT, C.J., and SPEAR and FRANCIS X. HENNESSY, JJ.

DUPONT, Chief Judge.

The plaintiff appeals from the summary judgment rendered in favor of the defendant. The plaintiff claims that genuine issues of material fact exist that preclude judgment for the defendant as a matter of law. We disagree and affirm the judgment of the trial court.

The relevant uncontroverted facts are those that follow. The plaintiff Jarrett Pion filed this action, through his parents, alleging that on August 8, 1990, he sustained multiple injuries when, while riding his bicycle, the "bicycle drifted" and he "violently struck a repeater box and cross arm support braces that were mounted" on a telephone pole owned, controlled and maintained by the defendant. The investigative report by the state police contained information that between 1 p.m. and 2 p.m., the plaintiff was riding his bicycle south on Day Street in the town of Brooklyn. He was accompanied by a friend, Daniel Turner, who was also riding a bicycle. The weather was clear, but the roads were wet in spots from an earlier rain shower. The plaintiff and Turner were riding downhill at a high rate of speed when the plaintiff veered off to the right side of the road and collided with an electric signal repeater box and the telephone pole on which it was mounted, both of which were owned and operated by the defendant. The plaintiff sustained serious head injuries when he made impact with the wooden cross beams that supported the repeater box. The repeater box and cross beams were located four feet from the ground. The telephone pole was located on private property.

Turner was the only eyewitness to the accident. He gave a statement to the police, and was also deposed. Turner testified in his deposition that he and the plaintiff had ridden their bicycles down the hill on Day Street hundreds of times, and that neither of them had ever veered off the road before. Turner described the telephone pole as being on a strip of grass between a white fence and the road. He stated that the distance from the fence to the shoulder of the road is three feet. Turner also stated that there are some trees on the strip of grass between the grass and the road, so that it would be nearly impossible to ride a bicycle on the grass. He also stated that the ordinary place to ride a bicycle on Day Street was in the road and not on the shoulder.

The plaintiff filed a two count complaint. The first count alleged that the defendant was negligent in its placement of the repeater box and in failing to warn adequately of its presence. The second count is identical to the first, except that it alleges that the defendant was reckless, wanton and wilful. The defendant raised two special defenses to both counts, contributory negligence and the barring of both claims by the applicable statute of limitations.

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]." (Citations omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995); see also Practice Book § 384.

The defendant attached the police report and Turner's deposition to its motion for summary judgment. The plaintiff's opposition referred to a statement made by Turner on February 22, 1991, to Turner's deposition and to the police report. The parties agree as to the circumstances surrounding the accident, the extent of the plaintiff's injuries and the location and characteristics of the telephone pole.

The dispositive issue on appeal is whether the defendant owed a duty of care to the plaintiff. The trial court concluded that, as a matter of law, the defendant did not owe the plaintiff any duty. The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law. "There can be no actionable negligence ... unless there exists a cognizable duty of care.... Whether a duty of care exists is a question of law to be decided by the court." (Citations omitted.) Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).

"The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? ... Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 45, 675 A.2d 852 (1996).

Foreseeability of the mere possibility of such an accident does not create a duty. "A simple conclusion that the harm to the...