Escourse v. 100 Taylor Avenue, LLC ( 2014 )

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TEANNA ESCOURSE ET AL. v. 100 TAYLOR
AVENUE, LLC, ET AL.
(AC 35528)
DiPentima, C. J., and Gruendel and Beach, Js.
Argued January 9—officially released June 10, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Richard P. Gilardi, judge trial referee.)
Paul L. Brozdowski, for the appellants (plaintiffs).
James A. Budinetz, with whom was David W. Case,
for the appellee (defendant Gennaro Cappuccia).
Opinion
DiPENTIMA, C. J. The plaintiffs, Teanna Escourse,
through her parents and next friends, and her parents,
Gillian Escourse and Christopher Fearon, individually,
appeal from the summary judgment rendered by the
trial court in favor of the defendant Gennaro Cappuc-
cia.1 On appeal, the plaintiffs claim that the court
improperly granted the motion for summary judgment
because (1) the defendant failed to meet his burden of
showing the absence of any genuine issue of material
fact, and (2) there was an evidentiary foundation to
demonstrate the existence of a genuine issue of material
fact.2 We affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. In the early morning of January 1, 2011, Teanna
Escourse, then sixteen years old, was struck by a hit
and run driver while walking along the shoulder of
Taylor Avenue in the southbound lane of travel in front
of 100 Taylor Avenue in Norwalk. The plaintiffs brought
a five count complaint against multiple defendants: 100
Taylor Avenue, LLC, the owner of property located at
100 Taylor Avenue; Christopher Condors, the owner of
property with a parking lot located diagonally across
the street from 100 Taylor Avenue at 97 Taylor Avenue;
the city of Norwalk; and the defendant, the owner of
property with two parking lots located directly across
the street from 100 Taylor Avenue at 103 Taylor Avenue.
The second count of the operative complaint was
directed against the defendant. The plaintiffs alleged,
inter alia, that Teanna Escourse was forced to walk
along the shoulder of the road, eventually resulting in
injuries and damages, because the defendant was negli-
gent ‘‘in that [he] plowed the snow that had accumulated
on his property across the street into the southbound
lane of traffic on Taylor Avenue, the southbound shoul-
der of the roadway, and onto the sidewalk abutting 100
Taylor Avenue, thereby rendering the sidewalk impassi-
ble to pedestrians . . . .’’3
On November 27, 2012, the defendant filed a motion
for summary judgment, arguing that neither he nor any-
one on his behalf plowed snow from his property across
the street, onto the shoulder of the roadway, and onto
the sidewalk in front of 100 Taylor Avenue. In support
of his motion, the defendant provided, among other
things, affidavits from himself and his snow removal
contractor, James O’Brien, as well as deposition testi-
mony from Vidal Gonez, a Norwalk police officer. The
plaintiffs objected, arguing that the evidence they sub-
mitted, principally a photograph depicting the condi-
tions in front of 100 Taylor Avenue at the time of the
incident and deposition testimony from Robert
Schriver, the owner of property located at 100 Taylor
Avenue, raised a genuine issue of material fact as to
whether the defendant had plowed snow from his prop-
erty onto the sidewalk in front of 100 Taylor Avenue.
The court granted the motion for summary judgment,
finding that the ‘‘unequivocal’’ affidavits submitted by
the defendant showed that there was no genuine issue
of material fact as to ‘‘liability and proximate cause
with respect to the defendant . . . .’’ The court further
found that the plaintiffs failed to provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact because the photograph and depo-
sition testimony submitted by them ‘‘amounted to noth-
ing more than unsubstantiated assumptions as to the
involvement of the defendant.’’ This appeal followed.
Additional facts will be set forth as necessary.
‘‘The standards governing our review of a trial court’s
decision to grant a motion for summary judgment are
well established. Practice Book [§ 17-49] 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. . . . In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to a judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . A material fact
. . . [is] a fact which will make a difference in the result
of the case. . . . Finally, the scope of our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Romprey v. Safeco Ins. Co. of America, 310 Conn.
304, 312–13, 77 A.3d 726 (2013).
I
The plaintiffs first claim that the court improperly
granted the motion for summary judgment because the
defendant failed to meet his burden of showing the
absence of any genuine issue of material fact. The plain-
tiffs contend that the ‘‘self-serving, conclusory’’ affida-
vits submitted by the defendant in support of his motion
for summary judgment fail to show the absence of any
genuine issue of material fact because they ‘‘merely
deny the allegations in the complaint . . . .’’ We are
not persuaded.
The following additional facts are necessary for our
discussion. The defendant submitted two affidavits in
support of his motion for summary judgment: one from
himself and another from O’Brien, his snow removal
contractor. In his personal affidavit, the defendant
averred that he uses, owns and operates a personal
plow truck to remove snow from his property. He also
averred that neither he nor anyone on his behalf plowed
or placed ‘‘any snow on either the southbound lane
of traffic on Taylor Avenue or onto the southbound
shoulder of the roadway or on[to] the sidewalk in front
of 100 Taylor Avenue . . . at any time up to and includ-
ing January 1, 2011 . . . .’’ He further averred that, with
respect to a snowstorm that ended on December 27,
2010, he plowed that snow from his parking lots to
separate grass areas on his property. In his affidavit,
O’Brien averred that he did not plow snow at the defen-
dant’s property following the December 27, 2010 snow-
storm, but that he does plow snow for the defendant
when he is away on vacation. He further averred that
at ‘‘no time up to and including January 1, 2011’’ had
he plowed snow from the defendant’s property to either
the southbound lane of traffic on Taylor Avenue or onto
the southbound shoulder of the roadway or onto the
sidewalk in front of 100 Taylor Avenue.4 The court found
that the affidavits submitted by the defendant were
sufficient to demonstrate the nonexistence of a genuine
issue of material fact as to his liability or proximate
cause. We agree.
The plaintiffs’ claim rests in large part on our decision
in Gambardella v. Kaoud, 38 Conn. App. 355, 660 A.2d
877 (1995). That case involved a slip and fall on an
allegedly defective sidewalk. Id., 356. There, the plain-
tiffs alleged that the defendants ‘‘caused and/or did
allow sand, sticks, and debris to accumulate on said
walkway, thereby covering and concealing from view
the cracked surface . . . .’’ (Internal quotation marks
omitted.) Id., 359. That allegation, we concluded, was
‘‘of a positive act by the defendants, which, if proved
at trial, could form the basis for the defendants’ liability
in negligence . . . .’’ Id. We further concluded that
summary judgment was inappropriate because the
defendants failed to adduce evidence to establish the
absence of a factual dispute. Id. In support of that con-
clusion, we explained: ‘‘The only evidence produced
in connection with the plaintiffs’ allegations that the
defendants had actively caused the unsafe condition of
the sidewalk was in the form of affidavits submitted by
the defendants. In these affidavits it was averred that
none of the defendants had created any condition on the
sidewalk that was unsafe, nor had any of the defendants
created or maintained any situation that caused the
sidewalk to become multi-angled, uneven, cracked, and
in a state of disrepair. These averments are little more
than denials of the facts alleged in the plaintiffs’ com-
plaint. Denials of the allegations in the complaint are
an insufficient basis for the rendition of summary judg-
ment.’’ Id., 359–60.
Citing Gambardella, the plaintiffs argue that the affi-
davits submitted by the defendants merely were denials
of the allegations in their complaint, and thus, insuffi-
cient to establish the nonexistence of a genuine issue
of material fact. The analogy the plaintiffs seek to draw
to Gambardella is unpersuasive. As discussed pre-
viously, the defendants in Gambardella denied allega-
tions of negligence by means of personal affidavits, but
critically, they did not challenge the factual basis of
those allegations. That is not the case here. Rather than
deny that he did not plow snow across the street, the
defendant specifically averred in his personal affidavit
that following the December 27, 2010 snowstorm, he
plowed snow from his parking lots to grass areas on
his property. In addition, O’Brien averred that he did not
plow in the area of Taylor Avenue up to and including
January 1, 2011. In doing so, the defendant not only
provided detailed facts, separate from the allegations,
to support his denial of liability, but also demonstrated
the nonexistence of any genuine issue as to whether
he plowed snow from his property onto the sidewalk.
Gambardella does not stretch so far as to discount,
wholesale, personal affidavits that assert admissible
facts, made on personal knowledge, in opposition to
a plaintiff’s allegations. See Patel v. Flexo Converters
U.S.A., Inc., 309 Conn. 52, 60–61, 68 A.3d 1162 (2013)
(affidavit submitted by defendant’s vice president suffi-
cient to demonstrate nonexistence of genuine issue as
to whether employee was defendant’s alter ego); Min-
gachos v. CBS, Inc., 196 Conn. 91, 114, 491 A.2d 368
(1985) (relying on personal affidavits of defendant
employees averring that they had not acted with intent
to cause injuries to uphold trial court’s granting of sum-
mary judgment). Accordingly, we agree with the court
that the defendant met his burden of showing the
absence of any genuine issue of material fact, and, there-
fore, the plaintiffs’ claim fails.
II
The plaintiffs next claim that the court improperly
granted the motion for summary judgment because
there was an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. Specifi-
cally, the plaintiffs contend that they submitted suffi-
cient circumstantial evidence to support the reasonable
inference that the defendant, or someone on his behalf,
plowed snow following the December 27, 2010 snow-
storm from his property across the street, onto the
shoulder of the roadway, and onto the sidewalk in front
of 100 Taylor Avenue. We disagree.
The following additional facts, viewed in the light
most favorable to the plaintiffs, are relevant to our
discussion. The plaintiffs submitted a personal affidavit
from Gillian Escourse, Teanna Escourse’s mother, in
which she averred that on January 1, 2011, she took a
photograph of the area where she had found her daugh-
ter lying in the snow. She further averred that the photo-
graph, which was appended to her affidavit, was ‘‘a true
and accurate depiction of the conditions of the sidewalk
in front of 100 Taylor Avenue and the shoulder of the
roadway the night of the incident.’’ The photograph
depicts a snowbank with a concave impression, which
according to the plaintiffs, reasonably may be inferred
to have been formed by the blade of a snowplow driven
from the direction of one of the defendant’s parking
lots. The plaintiffs argue that ‘‘the sheer volume of snow
depicted, the height, depth, size and shape of the snow-
bank, the texture of the snow piled up high in relation
to the surrounding areas, as well as the concave impres-
sion in the snowbank parallel to the street’’ is circum-
stantial evidence that the defendant, or someone on his
behalf, plowed snow from his parking lot onto the
street, the shoulder of the roadway, and the sidewalk
in front of 100 Taylor Avenue.
The plaintiffs also submitted deposition testimony
from Schriver, who testified about snow removal prac-
tices in the general area of 100 Taylor Avenue. During
a portion of his testimony, illustrative of the whole,
Schriver testified that there was ‘‘one time or twice’’
that ‘‘someone’’ put snow on his property. Asked to
compare his recollection of the incident with the photo-
graph submitted by the plaintiffs, Schriver testified that
he did not know when the photograph was taken or
whether it captured the incident he recalled. When later
asked about the time period of the incident he recalled,
the following exchange occurred:
‘‘Q. When was this incident that you’re referring to?
‘‘A. After one of the snowstorms.
‘‘Q. Before or after the incident that involves us
here today?
‘‘A. I couldn’t—I don’t—I couldn’t elaborate on that.
I really don’t remember. We had this problem occur like
in Norwalk repetitiously by different property owners
multiple times throughout the city.
‘‘Q. You don’t know which property owner it is you’re
referring to with respect to this incident, do you?
‘‘A. For this particular blade?
‘‘Q. Yes.
‘‘A. No.’’
It is true that Schriver also testified about an incident
involving a contractor who plowed snow from the
defendant’s property to the area in front of 100 Taylor
Avenue. He could not, however, testify as to when this
occurred, whether the photograph depicted the event,
or whether he observed the contractor in the act of
plowing snow.5
The court found that the evidence offered by the
plaintiffs was too speculative and conjectural to raise
a genuine issue of material fact as to liability and proxi-
mate cause. The plaintiffs disagree, countering that the
reasonable inferences drawn from the circumstantial
evidence created genuine issues as to liability and proxi-
mate cause, removing them from the field of conjecture
and speculation to preclude the rendering of summary
judgment. We agree with the court.
‘‘It is frequently stated in Connecticut’s case law that,
pursuant to Practice Book §§ 17-45 and 17-46, a party
opposing a summary judgment motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . [T]ypically [d]em-
onstrating a genuine issue requires a showing of eviden-
tiary facts or substantial evidence outside the pleadings
from which material facts alleged in the pleadings can
be warrantably inferred. . . . Moreover, [t]o establish
the existence of a material fact, it is not enough for the
party opposing summary judgment merely to assert the
existence of a disputed issue. . . . Such assertions are
insufficient regardless of whether they are contained
in a complaint or a brief. . . . Further, unadmitted alle-
gations in the pleadings do not constitute proof of the
existence of a genuine issue as to any material fact. . . .
‘‘Although the court must view the inferences to be
drawn from the facts in the light most favorable to the
party opposing the motion . . . a party may not rely
on mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judg-
ment. . . . A party opposing a motion for summary
judgment must substantiate its adverse claim by show-
ing that there is a genuine issue of material fact together
with the evidence disclosing the existence of such an
issue.’’ (Citation omitted; internal quotation marks omit-
ted.) Tuccio Development, Inc. v. Neumann, 111 Conn.
App. 588, 594, 960 A.2d 1071 (2008).
The evidence presented by the plaintiffs in opposition
to the motion for summary judgment fails to establish
a genuine issue as to whether the defendant plowed
snow from his property onto the sidewalk in front of
100 Taylor Avenue. None of the evidence contradicts
the defendant’s evidence. Viewing it in the light most
favorable to the plaintiffs, the evidence establishes the
size and location of the snowbank relative to the defen-
dant’s property and the probable use of a snowplow
by someone generally. The evidence does not support
the inference that the defendant plowed snow from
his property into the street, onto the shoulder of the
roadway, or onto the sidewalk in front of 100 Taylor
Avenue. To conclude otherwise would be to resort to
guesswork, conjecture, and speculation. See id.
No testimony was submitted from a witness, for
example, who observed the defendant plow snow from
his property onto the sidewalk. Schriver’s testimony
came nearest to approximating eyewitness testimony,
but even when viewed in the light most favorable to the
plaintiffs, his testimony was unclear and inconclusive,
often confusing events, locations, actors, and time peri-
ods. See DeCorso v. Watchtower Bible & Tract Society
of New York, Inc., 78 Conn. App. 865, 871, 829 A.2d 38
(‘‘[i]f the affidavits and the other supporting documents
are inadequate, then the court is justified in granting
the summary judgment’’ [internal quotation marks omit-
ted]), cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
Nor was there evidence of the size, shape or type of
snowplow used by the defendant or whether it was a
match for the concave impression left in the snowbank.
Nor is this a case where there was testimony from an
expert linking the direction or angle of the concave
impression to a fixed point of origin, for example, the
defendant’s property. Thus, the record before the trial
court reveals no genuine issues of material fact to war-
rant a full trial. See Acampora v. Asselin, 179 Conn.
425, 427–28, 426 A.2d 797 (1980).
The judgment is affirmed.
In this opinion the other judges concurred.
1
100 Taylor Avenue, LLC, the city of Norwalk, and Christopher Condors
were also defendants in this action, but are not involved in this appeal. We
therefore refer in this opinion to Cappuccia as the defendant.
2
The plaintiffs also claim that the court improperly failed to view the
evidence, and reasonable inferences therefrom, in the light most favorable
to them as the nonmoving party. Pointing to the court’s choice of words in
describing the evidence, such as ‘‘unequivocal’’ and ‘‘unsubstantiated,’’ the
plaintiffs argue that the court did not apply the appropriate standard of
review. This claim warrants minimal discussion. As discussed more fully in
part II of this opinion, upon our plenary review of the record, viewing the
evidence in the light most favorable to the plaintiffs, we conclude that there
were no genuine issues of material fact. Whatever error may be assigned
to the court due to the character or adornment of its language therefore
is immaterial.
3
In the operative complaint, count one was directed against 100 Taylor
Avenue, LLC, count three against Condors, and count four against the city
of Norwalk. Those counts are not at issue here, leaving counts two and five
to be discussed. In count five, the parents of Teanna Escourse, individually,
asserted a claim for medical expenses against all of the defendants. Because
the claim for medical expenses hinges on a finding of negligence, our resolu-
tion of count two removes the need to address count five. See Shiels v.
Audette, 119 Conn. 75, 77, 174 A. 323 (1934).
4
O’Brien also averred that he plowed snow for the defendant following
a January 12, 2011 storm. He asserted that he pushed snow left by a city
of Norwalk plow onto the sidewalk of 100 Taylor Avenue. He later averred,
however, that he removed that snow from the sidewalk after being asked
to do so by a male neighbor.
5
In his affidavit, O’Brien averred that this incident took place following
a January 12, 2011 snowstorm. See footnote 3 of this opinion.