The case stemmed from the plaintiff’s fall on a public sidewalk adjacent to the defendant’s property. The plaintiff claimed that during a snowstorm he was caused to fall and sustain injuries on the sidewalk when he slipped on an accumulation of snow and ice that had been covered by snow from the ongoing storm. The Plaintiff alleged that he sustained multiple bodily injuries but primarily a fracture of his left patella and the resulting permanent impairment of that knee.
Hassett | Donnelly moved for summary judgment on the grounds that the defendant owed the plaintiff no duty pursuant to the ongoing storm doctrine and the burden-shifting framework adopted by the Appellate Court in Belevich v. Renaissance I, LLC (2021). Under Belevich, the plaintiff’s own testimony that it was snowing at the time of his fall caused the burden on summary judgment to shift to him. As a result, the plaintiff was required to offer evidence that the ice on which he allegedly slipped formed before the ongoing storm.
The plaintiff offered two pieces of evidence that he argued were sufficient, when combined, to meet his burden of proof. First, the plaintiff offered his testimony that in the days leading up to his alleged fall, he saw water on the sidewalk in the vicinity of his fall. Second, he offered raw weather data that showed the low ambient temperatures during those days. Together, the plaintiff claimed, a reasonable jury could have concluded that the ice on which he slipped had formed days before his fall. In turn, the plaintiff argued that he had presented enough evidence to create a genuine issue of material fact as to when the ice on which he slipped had formed.
The trial court granted summary judgment. It held that the plaintiff’s testimony it was snowing at the time of his fall shifted the burden to the plaintiff, and that the evidence he submitted was insufficient to create a genuine issue of material fact. The court reasoned that the plaintiff failed to offer admissible evidence that connected the water on the sidewalk and low temperatures to the existence of the ice on which he claimed he slipped. The court opined that the plaintiff’s theory based on that evidence would have required the jury to engage in impermissible speculation and conjecture. The plaintiff appealed.
On appeal, the plaintiff argued both that the defendant’s evidence was insufficient to shift the burden to the plaintiff, and that the plaintiff proffered evidence sufficient to create a genuine issue of fact as to whether the ice on which he slipped pre-existed the ongoing storm. Because the standard of review of a trial court’s decision to grant a motion for summary judgment is plenary, the Appellate Court, like the trial court, assessed the evidence submitted by the parties to determine whether a genuine issue of material fact existed.
The Appellate Court agreed with the trial court’s reasoning and conclusions. At oral argument before the Appellate Court, plaintiff’s counsel conceded that his client’s testimony it was snowing when he fell caused the burden on summary judgment to shift from the defendant to the plaintiff. Still, the plaintiff argued that he presented evidence from which a reasonable jury could infer that the ice on which he slipped had formed from the water on the sidewalk and the low temperatures in the days before his fall. The Appellate Court was unpersuaded. The Court reiterated the precedent that even if the plaintiff had testified he saw ice in the general vicinity of the sidewalk days earlier, not merely water, the plaintiff’s evidence still would not have created a genuine issue of material fact. A jury still would have been left to speculate about how and when the ice formed and, therefore, the plaintiff failed to satisfy his burden.
The Appellate Court affirmed the trial court’s decision to grant summary judgment in the defendant’s favor.
To read the full decision, click here. Carty v. Merchant 99-111 Founders, LLC, 227 Conn. App. 683 (2024).
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