Ruiz v. Victory Props., LLC.

• Decision Date: 01 May 2012
• Docket Number: No. 32852.,32852.
• Citation: 43 A.3d 186,135 Conn.App. 119
• Court: Connecticut Court of Appeals
• Parties: Adriana RUIZ et al. v. VICTORY PROPERTIES, LLC.

135 Conn.App. 119

43 A.3d 186

Adriana RUIZ et al.

v.VICTORY PROPERTIES, LLC.

No. 32852.

Appellate Court of Connecticut.

Argued Dec. 1, 2011.

Decided May 1, 2012.

Michael T. Petela, with whom, on the brief, was Angelo Cicchiello, Hartford, for the appellant(plaintiffs).

Frederick M. Vollono for the appellee(named defendant).

ROBINSON, ALVORD and BORDEN, Js.

BORDEN, J.

The plaintiffs, Adriana Ruiz and Olga Rivera,¹ appeal from the grant of summary judgment in favor of the defendantVictory Properties, LLC.²On appeal, the plaintiffs claim that the trial court improperly concluded that, under the undisputed facts of the case, the defendant owed them no duty.We agree with the plaintiffs and, accordingly, reverse the judgment of the trial court.

The plaintiffs brought this complaint in negligence, and moved for a prejudgment remedy, which the court, after an evidentiary hearing, granted in part.Thereafter, the defendant moved for summary judgment, which the court granted.This appeal followed.

The record discloses the following undisputed facts, as stated by the trial court in its memorandum of decision on the motion for summary judgment.³“On the date of this incident, May 14, 2008, the defendant ... was the owner and landlord of a six-family apartment building located at 138 North Street, New Britain, Connecticut.Saribel Cruz resided in a third floor apartment with her son Luis who was ten years old.Ms. Cruz is the aunt of Adriana Ruiz, who was seven years old.Adriana resided in another apartment with her mother, Olga Rivera.Some buckets, trash, rocks, and broken concrete pieces were located in the backyard of the building.Prior to the incident on May 14, 2008, one tenant had complained to the landlord about the conditions of the backyard.

“On the date of the incident, a number of the children were playing in the backyard, watched by a number of adults.It was common for children who lived in the building, often joined by other neighborhood children, to play in the backyard, where they would sometimes ride or park their bikes, and where they would sometimes use a basketball hoop that had been set up.On this pleasant May day, Luis Cruz decided to see if he could split a rock by throwing it to the ground.He took a large rock from the backyard up to his family's third floor apartment and threw it from the window or [the] balcony to the ground.He saw his cousin Adriana below and yelled to her to get out of the way, but the rock hit her in the head, and she was badly injured.”

The court also noted the following in a footnote regarding the object that hit Ruiz: “Olga Rivera has submitted an affidavit in opposition to summary judgment in which she states, ‘upon information and belief ... Luis Cruz, a minor child, picked up a loose piece of concrete or cinder block’ and dropped it from the balcony, hitting Adriana.For purposes of summary judgment, an affiant is not permitted to offer evidence upon information or belief, but rather must offer evidence as would be admissible at trial.The transcripts of witnesses at the prejudgment remedy hearing all describe the object thrown by Luis as a ‘rock.’From the photographs attached as exhibits to the plaintiff's opposition papers, and from the description of the photographs by Saribel Cruz, it appears that the families in the building may have used the term ‘rock’ to describe either an actual rock or any large heavy piece of concrete.For consistency, the court will use the term ‘rock,’ as have the witnesses in the exhibits.”

At the outset, we note our standard of review.“Summary judgment is appropriate when 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....Thus, because the court's decision on a motion for summary judgment is a legal determination, our review on appeal is plenary....”(Internal quotation marks omitted.)Heussner v. Day, Berry & Howard, LLP,94 Conn.App. 569, 572–73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38(2006).

I

The plaintiffs contend that the court improperly granted the defendant's motion for summary judgment on the ground that the defendant owed no duty to the plaintiffs.⁴We agree.

“The existence of a duty of care is a prerequisite to a finding of negligence.”Gomes v. Commercial Union Ins. Co.,258 Conn. 603, 614, 783 A.2d 462(2001).“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[breached] that duty in the particular situation at hand.”(Internal quotation marks omitted.)Mendillo v. Board of Education,246 Conn. 456, 483, 717 A.2d 1177(1998).“If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”RK Constructors, Inc. v. Fusco Corp.,231 Conn. 381, 384–85, 650 A.2d 153(1994).

Our Supreme Court has 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.”(Internal quotation marks omitted.)Lodge v. Arett Sales Corp.,246 Conn. 563, 572, 717 A.2d 215(1998).

“In negligence cases[such as the present one] in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysisof the extent of the tortfeasor's duty [owed] to the plaintiff.”Malloy v. Colchester,85 Conn.App. 627, 633–34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698(2004).“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....Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong....Even where harm was foreseeable, [our Supreme Court] has found no duty when the nexus between a defendant's negligence and the particular consequences to the plaintiff was too attenuated.”(Internal quotation marks omitted.)Id., at 634, 858 A.2d 813.Put another way, “[i]t is a well established tenet of our tort jurisprudence that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable.”(Internal quotation marks omitted.)Lodge v. Arett Sales Corp.,supra, 246 Conn. at 575, 717 A.2d 215.

Ordinarily in tort law, whether a defendant's conduct is tortious is determined by the jury; the jury decides whether the defendant acted reasonably, which ordinarily includes, either explicitly or implicitly, whether the defendant should have reasonably foreseen the adverse consequences of its conduct.DiPietro v. Farmington Sports Arena, LLC,123 Conn.App. 583, 620–21, 2 A.3d 963, cert. granted, 299 Conn. 920, 10 A.3d 1053(2010).When, however, a court determines that no tort duty exists because the consequences of the alleged tortfeasor's conduct were too remote to be reasonably foreseeable, what the court is doing is concluding, as a matter of law, that no reasonable juror could find that the defendant should have foreseen the adverse consequences of its conduct.Thus, the question of foreseeability is, in the first instance, a jury question on the issue of negligence, and only becomes a legal question for the court when the defendant claims that the consequences of its conduct were not reasonably foreseeable and, therefore, it owed no duty of care to the plaintiffs.

The plaintiffs argue that the court improperly framed the issue as it did, claiming that the question of duty is based on the foreseeability of the general nature of the harm and not the exact manner in which the harm occurred.In response, the defendant argues that it owed no duty to the plaintiffs, as a matter of law, because this accident was caused by another child, and was simply unforeseeable.We agree with the plaintiffs.

The court, in its memorandum of decision, as the plaintiffs argue, based its conclusion of no duty on the contention that the harm suffered by Ruiz was not foreseeable.In order to establish the element of duty, however, the focus of the inquiry is not on the specific manner in which the harm occurred but instead on whether the general nature of the harm which Ruiz suffered was foreseeable.“[S]o long as harm of the general nature as that which occurred is foreseeable there is a basis for liability even though the manner in which the accident happens is unusual, bizarre....”(Internal quotation marks omitted.)Pisel v. Stamford Hospital,180 Conn. 314, 333, 430 A.2d 1(1980).Therefore, whether a landlord, in the defendant's position, should have been able to foresee the exact manner in which ten year old Luis Cruz would play with the large rock, and ultimately injure Ruiz, is not the proper inquiry.

In this instance, the inquiry regarding foreseeability should depend on whether a reasonable landlord, knowing that dangerous debris is present in a common area where children are known to play, would be able to foresee that a child was likely to suffer harm of the general nature that Ruiz suffered here as a result of children playing in that very area.The proper application of the doctrine that the court must focus on the general nature of the harm suffered, and not the specific manner in which the harm occurred, depends in part on the level of generality with which the nature of the harm is defined.In other...