Herrera v. Meadow Hill, Inc. ( 2023 )

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BYRON HERRERA v. MEADOW
HILL, INC., ET AL.
(AC 44949)
Alvord, Seeley and Sheldon, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, two companies
that possessed, controlled, managed and maintained certain condomin-
ium premises, for personal injuries he sustained in connection with an
alleged slip and fall as a result of untreated ice on the premises. The
trial court granted the defendants’ motion for summary judgment, in
which they argued that there was an ongoing storm at the time of the
plaintiff’s alleged fall or that a reasonable time had not elapsed following
the completion of the storm for them to have remediated the snowy or
icy condition. On the plaintiff’s appeal to this court, held:
1. This court declined to review the plaintiff’s unpreserved claim that issues
of material fact remained as to whether the defendants had a reasonable
time between the end of the precipitation and the plaintiff’s fall to have
remediated the icy condition, as that claim was never distinctly raised
before the trial court.
2. The trial court properly granted the defendants’ motion for summary
judgment because the defendants met their initial burden to demonstrate
that there was no genuine issue of material fact that there was an
ongoing storm at the time of the plaintiff’s fall or that a reasonable time
had not elapsed following the conclusion of the storm within which
they should have remediated the snowy or icy condition, and the plaintiff
thereafter failed to sustain his burden to raise a triable issue of fact as
to whether the precipitation from the storm was not the cause of the
accident, specifically, that the defendants created or exacerbated the
allegedly dangerous condition on the steps where he fell by engaging
in remediation efforts during the storm: the defendants submitted admis-
sible evidence, including a local ordinance, showing it was undisputed
that the two hour period between the end of the precipitation event
and the plaintiff’s fall was not a reasonable time for them to have
remedied any dangerous conditions, and the plaintiff failed to demon-
strate the existence of a genuine issue of fact as to whether the allegedly
negligent actions of the defendants with respect to snow or ice removal
caused his fall, as his evidentiary submissions were based on mere
speculation or conjecture.
Argued October 6, 2022—officially released February 21, 2023
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendants’ alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Noble,
J., granted the defendants’ motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Christopher G. Brown, for the appellant (plaintiff).
Kathleen F. Adams, with whom, on the brief, was
Michael T. Lynch, for the appellees (defendants).
Opinion
SEELEY, J. The plaintiff, Byron Herrera, appeals from
the summary judgment rendered by the trial court in
favor of the defendants, Meadow Hill, Inc. (Meadow
Hill), and Imagineers, LLC, in this premises liability
action arising out of the plaintiff’s alleged slip and fall
on ice on property possessed and controlled by the
defendants. On appeal, the plaintiff claims that the court
improperly rendered summary judgment in favor of the
defendants because the documents submitted in sup-
port of the defendants’ motion for summary judgment
did not eliminate all questions of material fact about
(1) whether they had a reasonable time to remediate
the snowy or icy condition prior to the plaintiff’s fall,
or (2) whether, if they did have a reasonable time to
remediate that condition before the plaintiff’s fall, they
failed to do so or did so negligently. We affirm the
judgment of the trial court.
The following facts, viewed in the light most favor-
able to the plaintiff, and procedural history are neces-
sary for the resolution of this appeal. In his complaint,
the plaintiff alleged that, on February 8, 2018, at approx-
imately 12:30 a.m., he was returning home to his condo-
minium unit located at 76 Hollister Way South in Glas-
tonbury (premises) when he slipped and fell due to the
icy condition of the exterior steps and walkway on
the premises. The plaintiff alleged that the defendants
possessed and controlled the premises. The plaintiff
further alleged that, as a result of his fall, he suffered
various physical injuries and incurred, and may con-
tinue to incur, medical expenses, a loss of wages and
earning capacity, and loss of the ability to participate
in life’s usual activities. The defendants filed an answer
and asserted, as a special defense, that the plaintiff’s
alleged injuries were caused by his own negligence.
On December 18, 2020, the defendants filed a motion
for summary judgment, accompanied by a supporting
memorandum of law, arguing that there was an ongoing
storm at the time of the subject incident or that a reason-
able time had not elapsed following the completion of
the storm for them to have remediated the snowy or
icy condition. The defendants argued, therefore, that
they were not liable to the plaintiff as a matter of law
pursuant to the ongoing storm doctrine set forth in
Kraus v. Newton, 211 Conn. 191, 197–98, 558 A.2d 240(1989), which provides that a property owner ‘‘may
await the end of a storm and a reasonable time there-
after before removing ice and snow from outside walks
and steps.’’1 In support of their motion for summary
judgment, the defendants submitted excerpts from the
plaintiff’s deposition testimony, a copy of article IV,
§ 17-52, of the Glastonbury Code of Ordinances, which
provides a twenty-four hour grace period for the
removal of snow, sleet and ice after the cessation of
precipitation,2 and the affidavit of meteorologist Robert
Cox, who opined about the weather conditions in Glas-
tonbury on February 7, 2018, and February 8, 2018. Cox
averred that there was snow and freezing rain during
this time, that the last snow ended at 10:11 p.m. on
February 7, 2018, and that many surfaces would have
been icy at 12:30 a.m. on February 8, 2018, due to the
precipitation that ended approximately two to two and
one-half hours earlier.3
On August 11, 2021, the plaintiff filed an objection
to the defendants’ motion for summary judgment. In
his objection, the plaintiff argued that an exception to
the ongoing storm doctrine applied because the defen-
dants undertook snow removal and salt application dur-
ing the storm. The plaintiff contended that, because the
defendants undertook these remediation efforts while
the storm was ongoing, genuine issues of material fact
existed regarding the nature and extent of the remedia-
tion process and whether it was done in a nonnegligent
manner. As evidentiary support for his argument, the
plaintiff appended to his objection the deposition tran-
script of Darien Covert, the superintendent of Meadow
Hill,4 and Michael Curtis, the assistant superintendent of
Meadow Hill, regarding their remediation efforts during
the storm in question. The defendants thereafter filed
a reply to the plaintiff’s objection, and the plaintiff filed
a supplemental objection to the defendants’ motion.
On August 20, 2021, the trial court granted the defen-
dants’ motion for summary judgment. In its memoran-
dum of decision, the court concluded that liability may
be imposed for snow or ice remediation that occurs
during a storm if it is done in a negligent manner. The
court noted that the plaintiff had offered no evidence
to rebut the defendants’ proffer of § 17-52 of the Glas-
tonbury Code of Ordinances as evidence of the standard
of care. The court further concluded that the plaintiff
had failed to establish that the defendants’ snow remedi-
ation efforts were in any way negligent. Accordingly,
‘‘[b]ecause the defendants . . . offered unrebutted evi-
dence of the standard of care and because of the plain-
tiff’s inability to demonstrate that the negligence of
the defendants’ employees resulted in his injuries,’’ the
court granted the defendants’ motion for summary judg-
ment. The plaintiff then filed the present appeal.
I
On appeal, the plaintiff argues that the evidence sub-
mitted by the defendants in support of their motion for
summary judgment did not eliminate all questions of
material fact as to whether the defendants had had a
reasonable time to remediate the ice on the walkway
before the plaintiff fell. He contends that what consti-
tutes a reasonable time is a question of fact dependent
on the circumstances, that the Glastonbury ordinance
attached to the defendants’ motion for summary judg-
ment was not evidence of a reasonable time to remedi-
ate the icy condition, and that the defendants’ proof
did not establish the time at which the storm ended.5
The plaintiff did not make these arguments either in
his objection or his supplemental objection to the
motion for summary judgment or at the hearing on the
motion for summary judgment. In fact, at the hearing
on the motion for summary judgment, counsel for the
plaintiff specifically stated that the reasonable time win-
dow ‘‘isn’t the appropriate question’’ and that ‘‘the ques-
tion is if you’re going to do [it], you should do it appro-
priately.’’ He conceded that two hours was a ‘‘short
window’’ and that the court ‘‘would not want to set a
precedent that that window was enough time.’’6
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal. We
repeatedly have held that [a] party cannot present a
case to the trial court on one theory and then seek
appellate relief on a different one . . . . [A]n appellate
court is under no obligation to consider a claim that is
not distinctly raised at the trial level. . . . [B]ecause
our review is limited to matters in the record, we [also]
will not address issues not decided by the trial court.
. . . The requirement that [a] claim be raised distinctly
means that it must be so stated as to bring to the atten-
tion of the court the precise matter on which its decision
is being asked. . . . The purpose of our preservation
requirements is to ensure fair notice of a party’s claims
to both the trial court and opposing parties. . . . These
requirements are not simply formalities. They serve to
alert the court to potential error while there is still time
for the court to act.’’ (Emphasis in original; internal
quotation marks omitted.) DiMiceli v. Cheshire, 162
Conn. App. 216, 229–30, 131 A.3d 771 (2016).
Having thoroughly reviewed the pleadings, the filings
the plaintiff made in opposition to the defendants’
motion for summary judgment, and other submissions
before the court, as well as the transcript of the oral
argument on the motion for summary judgment, we
conclude that the plaintiff failed to argue distinctly that
issues of material fact remained regarding whether the
defendants had a reasonable time between the end of
the precipitation and the plaintiff’s fall to have remedi-
ated the icy condition. Because the issues raised by the
plaintiff on appeal were not expressly raised before
the trial court, we decline to consider these issues on
appeal.7
II
The plaintiff next argues that his rebuttal proof
showed that the defendants had a reasonable time to
remediate the icy condition but either did not do so or
did so negligently. He contends that, ‘‘[v]iewing the
evidence most favorably to [the plaintiff], a reasonable
person could conclude that the defendants, despite
being present with ample time and personnel, either
did not salt as they claim that they did or did not salt
adequately. That creates a genuine issue of material
fact about whether the defendants were negligent in
their postprecipitation remediation effort.’’
In considering this claim, we note that there is a split
of authority in the Superior Court as to whether there
is an exception to Kraus v. Newton, supra, 211 Conn.
197–98, that would permit liability to be imposed for
snow or ice remediation that occurs during a storm if
it is done negligently. Compare Zyskowska v. Danbury
Mall, LLC, Superior Court, judicial district of Danbury,
Docket No. CV-XX-XXXXXXX-S (March 9, 2020) (recogniz-
ing exception ‘‘upon the principle of Connecticut law
that a party who undertakes an act gratuitously is liable
for performing it negligently’’), with Rodriguez v.
Midstate Medical Center, Docket No. CV-XX-XXXXXXX,
2008 WL 2745173, *3 (Conn. Super. June 17, 2008)
(declining to recognize exception and concluding that
‘‘[t]o suggest that one should not begin to plow because
they may then become liable for an icy condition during
the snowstorm is contrary to the holding of Kraus,
which did not find a duty to clear snow or to spread sand
or ashes while a storm continues’’ (emphasis omitted;
internal quotation marks omitted)). In the present case,
the court recognized the exception but concluded that
the plaintiff had failed to demonstrate that the defen-
dants’ remediation efforts were in any way negligent.
We need not decide whether the court correctly recog-
nized this exception to the ongoing storm doctrine
because, even if the court correctly recognized the
exception, the plaintiff did not present evidence demon-
strating the existence of a disputed issue of material fact
in opposition to the defendants’ motion for summary
judgment.
We first set forth the relevant standard of review.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
A party moving for summary judgment is held to a strict
standard. . . . To satisfy his burden the movant must
make a showing that it is quite clear what the truth is,
and that excludes any real doubt as to the existence of
any genuine issue of material fact. . . . As the burden
of proof is on the movant, the evidence must be viewed
in the light most favorable to the opponent. . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue. . . . Once the moving party has met
its burden, however, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual 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 pre-
sented to the court under Practice Book § [17-45]. . . .
Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Belevich v. Renaissance I,
LLC, 207 Conn. App. 119, 124, 261 A.3d 1 (2021).
In Belevich, this court considered the application of
the ongoing storm doctrine in the context of summary
judgment and its attendant burden shifting. Id., 125.
Noting the scant authority from other jurisdictions on
the issue of the ongoing storm doctrine in the context
of summary judgment, this court adopted, as a matter
of Connecticut common law, the approach taken by
the New York Appellate Division in Meyers v. Big Six
Towers, Inc., 85 App. Div. 3d 877, 877–78, 925 N.Y.S.2d
607 (2011), which held that, ‘‘[a]s the proponent of the
motion for summary judgment, the defendant ha[s] to
establish, prima facie, that it neither created the snow
and ice condition nor had actual or constructive notice
of the condition . . . . [T]he defendant [may sustain]
this burden by presenting evidence that there was a
storm in progress when the plaintiff fell . . . . [Upon
the defendant meeting its burden], the burden shift[s]
to the plaintiff to raise a triable issue of fact as to
whether the precipitation from the storm in progress
was not the cause of his accident . . . . To do so, the
plaintiff [is] required to raise a triable issue of fact
as to whether the accident was caused by a slippery
condition at the location where the plaintiff fell that
existed prior to the storm, as opposed to precipitation
from the storm in progress, and that the defendant
had actual or constructive notice of the preexisting
condition . . . . ’’ (Internal quotation marks omitted.)
Belevich v. Renaissance I, LLC, supra, 207 Conn.
App. 127–28.
In the present case, the trial court, relying on Cox’s
affidavit and § 17-52 of the Glastonbury Code of Ordi-
nances, concluded that the defendants had satisfied
their initial burden to demonstrate that there was no
genuine issue of material fact that there was an ongoing
storm or that a reasonable time had not elapsed follow-
ing the conclusion of the storm within which the defen-
dants should have remediated the snowy or icy condi-
tion.8 The court stated that ‘‘the defendants proffer § 17-
52 as evidence of the standard of care. Specifically, this
is evidence that the two hour period between the end of
the precipitation event and the fall is not [a reasonable]
period of time for them to have remedied any dangerous
conditions. The plaintiff offers no evidence to dispute
this and as such the defendants would be entitled to
summary judgment if the plaintiff’s counterargument
regarding the inadequacy of snow remediation fails.’’
In accordance with Belevich v. Renaissance I, LLC,
supra, 207 Conn. App. 127, the burden then shifted to
the plaintiff ‘‘to raise a triable issue of fact as to whether
the precipitation from the storm in progress was not
the cause of his accident.’’ To do so, ‘‘the plaintiff was
required to demonstrate the existence of a triable issue
of fact as to whether the snow abatement efforts
engaged in by [the defendants] exacerbated the natural
hazard created by the snowstorm.’’ Ali v. Pleasantville,
95 App. Div. 3d 796, 797, 943 N.Y.S.2d 582 (2012).9
Accordingly, we must determine whether the plaintiff
provided any evidence that the allegedly negligent
actions of the defendants with respect to the snow or
ice removal caused the plaintiff’s fall.
The trial court determined that the plaintiff had not
satisfied this burden, concluding that he ‘‘offered no
evidence as to the time the salt had been applied or
whether the efficacy of the salt application was deterio-
rated by continued precipitation. The plaintiff fails also
to demonstrate any evidence that the result of the appli-
cation of salt rendered the condition more defective or
dangerous than if they had not applied salt. In short,
the plaintiff has failed to establish that the defendants’
efforts at snow remediation were in any way negligent.’’
On the basis of our plenary review of the pleadings and
documentary submissions, we agree with the trial court
that the plaintiff failed to raise a triable issue of fact
as to whether the precipitation from the storm was not
the cause of the accident.
As stated earlier in this opinion, the plaintiff submit-
ted the deposition testimony of Covert and Curtis in
support of his objection to the defendants’ motion.
According to Covert, the condominium complex is com-
prised of thirty-three acres and is divided into three
sections, a gray section, a red section, and a brown
section. The plaintiff’s fall occurred in the gray section.
Covert and Curtis both testified that they shoveled and
applied salt at the complex on February 7, 2018, until
approximately 11 p.m. or 11:30 p.m. and returned at
approximately 4 a.m. on February 8, 2018, to complete
the job.10 Covert testified that they did not document
when they put salt down during this storm; rather, they
did a walk-through when they were done to make sure
that they did not miss any locations. Although Covert
testified that rock salt is used for heavy storms, he
could not recall what type of salt he used for this storm.
Looking at a photograph showing the walkway where
the plaintiff fell, Covert identified the area where he
and Curtis had put salt down. Covert testified that he
trained Curtis to put down salt ‘‘like [he] didn’t pay for
it’’ and that they ‘‘take a lot of pride in making sure
[their] complex is safe.’’ With regard to the gray area
of the complex, Covert testified that they ‘‘put down a
majority of salt on [the] walkways.’’11 He could not recall
how many times he and Curtis applied salt to this area
of the complex.
Curtis recalled that he and his crew of part-time
employees shoveled the pathways and stoops on Febru-
ary 7, 2018. He recalled that, at some point, the snow
changed over to freezing rain and that they applied salt
before leaving the premises.12 He recalled putting salt
down two times during the storm. He testified that he
came back in the morning after only ‘‘a couple of hours
of sleep’’ to complete the job.
Although Covert and Curtis both testified regarding
their remediation efforts during the storm in question,
the plaintiff testified in his deposition that snow
removal and salt application had not been performed
on the steps where he fell.13 The plaintiff attached, as
exhibits to his supplemental objection to the defen-
dants’ motion for summary judgment, photographs that
he had taken after his fall; the plaintiff contended that
these photographs, which were marked as exhibits at
the plaintiff’s deposition, arguably showed that salt had
not been applied to the walkways of the complex. At
the hearing on the motion for summary judgment, coun-
sel for the plaintiff argued that ‘‘[the plaintiff] says it
wasn’t done. [The defendants] said it was done, and
that’s the issue we believe that [we] should bring . . .
to a jury.’’ In its decision, the court stated that, ‘‘[i]n
essence, the plaintiff’s argument is that his lack of
observation of any conditions indicating plowing, shov-
eling of snow or application of salt or other treatment
ipso facto raises an issue of material fact as to whether
such efforts were negligently performed.’’
As noted by the trial court, the evidence is unclear
as to when and if Covert and Curtis applied salt to the
precise steps on which the plaintiff fell. Even if the
plaintiff is correct that the defendants did not salt the
precise steps where he fell, he has failed to raise a
triable issue of fact as to whether the defendants cre-
ated or exacerbated the allegedly dangerous condition
by engaging in remediation efforts during the storm.
‘‘The mere failure of a defendant to remove all of the
snow and ice, without more, does not establish that
the defendant increased the risk of harm.’’ (Internal
quotation marks omitted.) Henenlotter v. Union Free
School District No. 23, 210 App. Div. 3d 657, 658, 177
N.Y.S.3d 156 (2022); see also Glover v. Botsford, 109
App. Div. 3d 1182, 1184, 971 N.Y.S.2d 771 (2013) (‘‘the
mere failure to remove all snow and ice from a sidewalk
. . . does not constitute negligence and does not con-
stitute creation of a hazard’’ (emphasis omitted; internal
quotation marks omitted)); Ali v. Pleasantville, supra,95 App. Div. 3d 797 (‘‘[the defendant’s] alleged failure
to remove snow that had fallen during the course of
the storm and its alleged failure to apply salt or sand
to the sidewalk, do not constitute affirmative acts of
negligence’’).
Furthermore, ‘‘[a] party may not rely on mere specula-
tion or conjecture as to the true nature of the facts to
overcome a motion for summary judgment. . . . A
party opposing a motion for summary judgment must
substantiate its adverse claim by showing that there is
a genuine issue of material fact together with the evi-
dence disclosing the existence of such an issue.’’ (Inter-
nal quotation marks omitted.) Martinez v. Premier
Maintenance, Inc., 185 Conn. App. 425, 456, 197 A.3d
919 (2018). The plaintiff in the present case points to
his testimony and the photographs marked as exhibits
at his deposition to support his claim that the defen-
dants did not salt adequately; according to the plaintiff,
this creates a genuine issue of material fact about
whether the defendants were negligent in their postpre-
cipitation remediation efforts. We disagree and con-
clude that the plaintiff’s claims are based on mere spec-
ulation or conjecture and, therefore, that the plaintiff
has failed to substantiate his adverse claim in his objec-
tion to the defendants’ motion for summary judgment.
See Aronov v. St. Vincent’s Housing Development Fund
Co., 145 App. Div. 3d 648, 650, 43 N.Y.S.3d 99 (2016)
(summary judgment for defendants properly granted
when ‘‘[t]he plaintiff offered nothing more than conjec-
ture and speculation as to how the defendants’ efforts to
remove snow from the sidewalk created or exacerbated
the icy condition upon which she allegedly slipped and
fell’’); Scher v. Kiryas Joel Housing Development Fund
Co., 17 App. Div. 3d 660, 661, 794 N.Y.S.2d 112 (2005)
(‘‘the plaintiff merely speculated that the defendants
created the icy condition by negligently shoveling the
walkway [and] [s]uch speculation was insufficient to
raise a triable issue of fact to defeat the motions [for
summary judgment]’’).
In light of the foregoing, and on the basis of our
plenary review of the pleadings and documentary sub-
missions, we conclude that the trial court properly con-
cluded that the plaintiff had failed to raise a triable
issue of fact in opposition to the defendants’ motion
for summary judgment and, therefore, properly granted
the defendants’ motion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In Kraus v. Newton, supra, 211 Conn. 191, our Supreme Court held that,
‘‘in the absence of unusual circumstances, a property owner, in fulfilling
the duty owed to invitees upon his property to exercise reasonable diligence
in removing dangerous accumulations of snow and ice, may await the end
of a storm and a reasonable time thereafter before removing ice and snow
from outside walks and steps. To require a landlord or other inviter to keep
walks and steps clear of dangerous accumulations of ice, sleet or snow or
to spread sand or ashes while a storm continues is inexpedient and impracti-
cal. Our decision, however, does not foreclose submission to the jury, on
a proper evidentiary foundation, of the factual determinations of whether
a storm has ended or whether a plaintiff’s injury has resulted from new ice
or old ice when the effects of separate storms begin to converge.’’ (Footnote
omitted.) Id., 197–98.
2
The Glastonbury Code of Ordinances provides in relevant part:
‘‘Sec 17-52—Removal of snow, ice, debris, vegetative growth and other
obstructions.
‘‘(a) The owner, agent of the owner, or occupant of any property bordering
upon any street, square or public place within the town where there is a
paved or concrete sidewalk shall cause to be removed therefrom any and
all snow, sleet, ice, debris, vegetative growth and other obstructions. Nothing
in this section shall be deemed to remove or alleviate the owner’s responsibil-
ity and liability for correcting hazardous conditions on their property.
‘‘(1) Removal of snow, sleet and ice shall be done within twenty-four
(24) hours after the same shall have fallen, been deposited or found, or in
the case of ice that cannot be removed, such ice shall be covered with sand
or some other suitable substance to cause such sidewalk to be made safe
and convenient within such time period. Removal of snow and ice shall
mean the removal of snow and ice to the full width of the sidewalk.’’
(Emphasis added.)
The defendants also submitted the ordinances of the neighboring towns
of Rocky Hill, East Hartford and Manchester.
3
Cox’s affidavit provides in relevant part:
‘‘6. On February 7, 2018, between 9:44 a.m. and 1:10 p.m., snow fell in
Glastonbury, Connecticut. The snow accumulated 0.5’’–1.0.’’
‘‘7. On February 7, 2018, between 1:10 p.m. and 9:52 p.m., freezing rain
fell in Glastonbury, Connecticut.
‘‘8. On February 7, 2018, between 9:52 p.m. and 10:11 p.m., snow fell in
Glastonbury, Connecticut.
‘‘9. On February 8, 2018, at 12:30 a.m., many surfaces would have been
icy due to the precipitation that ended about 2.0–2.5 hours earlier.’’
4
Meadow Hill is the association for the condominium complex in which
the premises is located.
5
In support of this argument, the plaintiff points out that, although Cox
averred in his affidavit that the precipitation ended in Glastonbury at 10:11
p.m. on February 7, 2018, the plaintiff testified in his deposition that the
precipitation ended in Middletown at approximately 7 p.m. or 8 p.m. that
night.
6
The transcript of the hearing on the defendants’ motion for summary
judgment reveals the following:
‘‘The Court: [Counsel], do you concede that there was a reasonable time
between the stop of the precipitation and the following—that the two hour
period wasn’t—was—it would be unreasonable to expect the defendants to
have cleared the ice and snow and were salted?
‘‘[The Plaintiff’s Counsel]: Your Honor, the—I have to concede that that
is a short amount of time, and the court would—would not want to set a
precedent that that window was enough time. So, I can’t—that’s not my
argument.
’’To answer your question, it’s a short window. My argument is different.
My argument relies on the cases that it doesn’t—I’m not talking about the
window—first I have to commit to Your Honor and the court that the
window isn’t the appropriate question, the question is if you’re going to
do [it], you should do it appropriately. And what—what’s here, when you
ask the maintenance men how much salt did you apply, how much shoveling
did you do, where did you do it, what areas did you do it, they don’t document
it. There is no way—they testified to that, but there is no documentation
as to during this eleven hours, this is what we did on hour one, two, three
and four. My client says it wasn’t done. They said it was done, and that’s the
issue we believe that [we] should bring . . . to a jury.’’ (Emphasis added.)
7
The plaintiff also argues that, even if the claims raised on appeal are
not sufficiently the same as the claims raised before the trial court, review
pursuant to the plain error doctrine is appropriate. We disagree.
‘‘[The plain error] doctrine . . . is an extraordinary remedy used by appel-
late courts to rectify errors committed at trial that, although unpreserved,
are of such monumental proportion that they threaten to erode our system
of justice and work a serious and manifest injustice on the aggrieved party.
. . . It is a rule of reversibility . . . that this court invokes in order to
rectify a trial court ruling that, although either not properly preserved or
never raised at all in the trial court, nonetheless requires reversal of the trial
court’s judgment, for reasons of policy. . . . An appellate court addressing
a claim of plain error first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernible on the face of a factually
adequate record, [and] also . . . obvious in the sense of not debatable.’’
(Citation omitted; internal quotation marks omitted.) O’Rourke v. Dept. of
Labor, 210 Conn. App. 836, 855 n.15, 271 A.3d 700 (2022). ‘‘[T]he plain error
doctrine is reserved for truly extraordinary situations where the existence
of the error is so obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings.’’ (Internal quotation marks
omitted.) Wright v. Dzurenda, 207 Conn. App. 228, 240, 271 A.3d 664 (2021).
After a thorough review of the record, we conclude that the plaintiff has failed
to demonstrate that there was an error ‘‘so clear, obvious and indisputable
as to warrant the extraordinary remedy of reversal.’’ (Internal quotation
marks omitted.) Id., 241.
8
As it was undisputed in Belevich v. Renaissance I, LLC, supra, 207 Conn.
App. 128, that there was an ongoing storm at the time of the plaintiff’s
alleged fall, it was unnecessary for this court to consider in that case whether
a reasonable time had elapsed following the conclusion of the storm within
which the defendant could have remediated the ice and snow.
9
As we did in Belevich v. Renaissance I, LLC, supra, 207 Conn. App.
126–27, we turn to the body of law from New York for guidance on this issue.
10
Covert testified as follows:
‘‘Q. Okay. And do you recall what your plan was with regard to this
particular storm and applying salt on the walkways?
‘‘A. I do.
‘‘Q. What was that?
‘‘A. After we had removed the snow, I believe it transitioned to freezing
rain, and it—I believe—I’m trying to go by my memory—that it did turn
back to snow again, and I believe we went out and salted before we left
during—when the storm was still coming down.
‘‘We had to get some rest. I believe we left somewheres around 11 o’clock
with a return to work time of 4 a.m. So, off the property—we were off the
property from a little after 11, back on property 4 a.m.
‘‘Q. That’s 11 p.m.?
‘‘A. Correct.
‘‘Q. Okay. And is it your memory that—I think you said that during the
storm, or during the transition, salt was applied?
‘‘A. Correct.’’
11
Covert testified as follows:
‘‘Q. And in terms of what you did to the gray area of the complex before
11 p.m., are you able to tell me what you did in terms of fighting the storm?
‘‘A. We took care of all of the snow on the walkways. As I previously
stated, if you leave the snow and freezing rain comes onto it, it turns into
a block of ice. To make our jobs easier we make sure we get rid of the
snow before the transition or during the transition. I do remember that night
being very cold and us being very wet doing it. We put down a majority of
salt on all these walkways.’’
12
Curtis testified as follows:
‘‘Q. And do you recall what you did to deal with the storm on Friday,
February 7, 2018?
‘‘A. I recall coming in. There was a minimal amount of snow, one or two
inches. Me and my crew all shoveled, pathways and stoops. It stopped for
a period of time, changed over to freezing rain. We went out again after a
nice break and got some food. Went through it again, dropped the shovels.
Then at the end, we went through and salted. Finished around 11, 11:30.
‘‘Q. When you say with ‘your crew,’ you’re talking about the part-time help?
‘‘A. Yes. Shovelers only.’’
13
Specifically, when asked what he did when he got out of his car just
before he fell, the plaintiff testified: ‘‘I did [try] to walk slowly because I
knew they didn’t do anything, they didn’t plow, they didn’t shovel or put
anything on it so I just walked nice and easy tippy-toed just to be careful
of what I was walking on. Once I got to the stairs the stairs were icy so I
grabbed to the railing and I went up slowly, but as soon as I got to the last
step, the last spot to grab and I had nothing else to grab and . . . that’s
when I slipped.’’