Diane S. Bosque v. Oakwood Farms Sports Center, Inc., et al.

The plaintiff, Diane S. Busque,
appeals from the judgment of the trial court rendered
on the granting of the motion for summary judgment
filed by the defendant Oakwood Farms Sports Center,
Inc. Notwithstanding the issues as framed, the plaintiff
essentially argues that the court improperly found that
there were no genuine issues of material fact.1 Because
we agree, we reverse the judgment of the trial court
rendered upon the granting of the defendant's motion
for summary judgment.2

The following facts and procedural history are relevant
to our resolution of the plaintiff's appeal. On Janu-
ary 21, 2001, the plaintiff and her husband drove to the
defendant's facility at 40 Oakwood Drive in Glastonbury.
Upon arrival at the defendant's premises, there
were no available parking spaces. The plaintiff's husband
proceeded to park their automobile in a parking
lot at 21 Sequin Drive. The couple attended a soccer
game at the defendant's facility. At the conclusion of
the soccer game, the couple walked back to their car.
The plaintiff sustained injuries after slipping and falling
on a patch of ice in the parking lot.

The plaintiff commenced this action on January 22,
2002. In count one of the complaint, the plaintiff alleged
that the injuries she sustained in her fall at the parking
lot were the result of the negligence and carelessness
of the defendant.3 On May 1, 2002, the defendant filed
a motion for summary judgment as to count one. In the
motion, the defendant argued that it did not owe the
plaintiff a duty of care because she had not demonstrated
the required elements of the defendant's possession
and control over the parking lot. The plaintiff filed
an objection to the motion for summary judgment, and
oral argument occurred before the court on June 4,
2002.

The court granted the defendant's motion for summary
judgment on June 12, 2002. The court concluded
(1) there were no affidavits filed by the plaintiff,4 (2)
there was no evidence that the defendant possessed or
controlled the premises or that it owed any duty to the
plaintiff and (3) there was no evidence that the plaintiff
was directed to 21 Sequin Drive. Following the granting
of the motion for summary judgment, the plaintiff filed
five motions seeking either review or articulation of
the court's decision. On June 25, 2002, the plaintiff filed
a motion for reconsideration, which was opposed by
the defendant. The plaintiff argued that the court had
failed to review her affidavit that had been filed with
her opposition to the motion for summary judgment.
The court denied the motion on September 9, 2002,
without explanation. Thereafter, the plaintiff filed two
more motions on which the court did not act.
The plaintiff then filed a second motion to reconsider
on the ground of newly discovered evidence and a
motion for articulation, both dated September 19, 2002.
On October 7, 2002, the court issued an order denying
the motion as to newly discovered evidence, stating:
‘‘Denied for same reasons as stated for original motion
for summary judgment, i.e. as to control, duty or direction.''

On the same date, the court denied the plaintiff's
motion for articulation. This appeal followed.
The plaintiff claims that the court improperly granted
the defendant's motion for summary judgment in part
because it failed to consider her affidavit. Because genuine
issues of material fact exist as to the defendant's
liability, we agree with the plaintiff on that issue.
‘‘The standard of review of a trial court's decision to
grant a motion 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, thereforecannot
refute evidence properly presented to the
court [in support of a motion for summary judgment].''
(Citation omitted; internal quotation marks omitted.)
Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn.
185, 202, 663 A.2d 1001 (1995). ‘‘In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . Our review of the trial court's decision to
grant [a] motion for summary judgment is plenary.''
(Citation omitted; internal quotation marks omitted.)
Barry v. Quality Steel Products, Inc., 263 Conn. 424,
450, 820 A.2d 258 (2003).

‘‘Issues of negligence are ordinarily not susceptible
of summary adjudication but should be resolved by
trial in the ordinary manner.'' (Internal quotation marks
omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476
A.2d 582 (1984). Summary judgment is particularly ‘‘illadapted
to negligence cases, where, as here, the ultimate
issue in contention involves a mixed question of
fact and law, and requires the trier of fact to determine
whether the standard of care was met in a specific
situation.'' (Internal quotation marks omitted.)
Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857
(1975).

In this case, the affidavit filed by the plaintiff with
her opposition to the defendant's motion for summary
judgment provides an evidentiary foundation that demonstrates
that a genuine issue of material fact exists as
to whether the plaintiff was a business invitee or was
negligently directed. In her affidavit, the plaintiff stated
there were no available parking spaces on the defendant's
premises. She further stated that on an earlier
occasion at the defendant's facility, she saw a notice
posted at the reception desk indicating that additional
parking was available in other parking lots at the back
of the facility. She also stated that on previous occa-
sions, an employee of the defendant informed her that
there was additional parking at the back of the facility
and that those parking lots were not associated with
the defendant. Finally, she claimed that there were no
signs prohibiting parking at the lot at 21 Sequin Drive.
Viewing the plaintiff's affidavit in the light most favorable
to her, the affidavit creates genuine issues of material
fact. The plaintiff claimed that the defendant
negligently directed her to an area that was identified
improperly. In support of that claim, the plaintiff
averred that there was a notice posted at the reception
desk directing her toward parking lots behind the building.

Moreover, she averred that the defendant's employees
directed her to parking lots located behind the
defendant's facility. There exists a question of fact
regarding the specific contents of the notice posted at
the reception desk. There also exists a question of fact
regarding exactly where the defendant's employees told
the plaintiff she could park in the event there was no
available parking at the defendant's facility. Furthermore,
there are issues of material fact surrounding
whether the plaintiff should be considered a business
invitee and, therefore, owed a duty of care. The presence
of those material issues of fact rendered the granting
of the defendant's motion for summary judgment
inappropriate. Accordingly, we conclude that the court
improperly granted the motion for summary judgment.