PICKARD.
The defendant, Matthew Thomas, has moved for summary judgment (#111). He and the plaintiff, Josh Hilliard, have submitted briefs and supporting documentation. Oral argument took place on December 15, 2008. For the reasons stated below, the motion for summary judgment must be denied.
Facts
On October 21, 2006 the plaintiff attended an outdoor party hosted by the defendant at 187 Aspetuck Road in New Milford, Connecticut. The property was owned by Terry Thomas who was formerly a defendant in this case, but against whom the plaintiff has withdrawn the action. The plaintiff has also withdrawn the action against Alexandra Thomas. The defendant, Matthew Thomas, was a tenant in one of the three houses located on the property.
During the party, the defendant, Matthew Thomas, and Andrew Perlowski threw a beer keg on an open bonfire around which many of the guests were gathered. Sometime after the beer keg was thrown onto the fire, one of the people attending the party said to the defendant that, "You know that's really not a good idea?" in reference to the beer keg on the fire. In response, the defendant said, "Don't worry, I'll stand here and protect you." A number of hours after the keg was placed on the fire it exploded, sending shrapnel into the crowd injuring a number people and killing George Caselli.
The plaintiff seeks to recover damages for injuries which he received from the shrapnel. The defendant has moved for summary judgment on the ground that the defendant owed no duty of care to the plaintiff.
Legal Standard for Summary Judgment
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire CT Page 1773 agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "The courts hold the [summary judgment] movant 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 summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Id., 318-19.
Discussion
The defendant characterizes the plaintiff's cause of action as one of premises liability. The defendant assumes that the plaintiff would be an invitee. He restates well-established law that the possessor of property owes an invitee a duty to reasonably inspect and maintain the premises in order to render them reasonably safe and to warn the invitee of dangers the invitee could not reasonably be expected to discover. Warren v. Stancliff, 157 Conn. 216, 220 (1968). The defendant's argument is based upon alternative theories that he had no duty to correct or warn the plaintiff of the danger of the beer keg on the fire because: 1) the danger was hidden and unknown to the defendant even after a reasonable inspection of the premises, or 2) the danger was open and obvious, thereby relieving the defendant of the duty to warn of a danger which would have been open and obvious to the plaintiff as well.
The defendant cites Davies v. General Tours, Inc., 63 Conn.App. 17, 24 (2001) for the principle that the plaintiff "must demonstrate that the defendant knew that danger existed before the duty to warn is implicated."
The defendant cites Krauss v. Newton, 14 Conn.App. 561, 657 (1988) for the principle that the possessor of land has no duty to warn an invitee of a dangerous condition which is known to the plaintiff or so obvious that he may be expected to discover it.
The plaintiff takes issue with the defendant's assumption that this is a premises liability case. The plaintiff argues that his complaint sounds not in premises liability but in simple negligence for the positive act of placing the keg on the fire. Although the complaint confuses the issue because it contains elements of premises liability, the plaintiff has not alleged the crucial fact which would create a premises liability case: possession and control of the property. "Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property." LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002). The failure to allege possession and control convinces me that the plaintiff is correct in asserting that, as pleaded, this is a simple negligence case.
The plaintiff uses the word "invitees" to refer to himself and other party-goers. He also makes allegations of negligence normally associated with premises liability cases.
CT Page 1774 "The essential elements of a cause of action in negligence are well established: duty; breach of duty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails." (Citations omitted; Internal quotation marks omitted.) Grignano v. Milford, 106 Conn.App. 648, 651-52 (2008).
Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty . . . The issue of whether a duty exists is a question of law; which is subject to plenary review. We sometimes refer to the scope of that duty as the requisite standard of care. [O]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . (ordinary care has reference to probabilities of danger rather than possibilities of peril). The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow. ([R]easonable care does not require that one must guard against eventualities which, at best, are too remote to be reasonably foreseeable.) Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation . . . would obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken. Finally, [i]f 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.
(Citations omitted; Internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138-39 (2002).
A simple conclusion that the harm to the plaintiff was CT Page 1775 foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally "foreseeable," yet for pragmatic reasons, no recovery is allowed. A further inquiry must be made, for we recognize that "duty" is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.
Jaworski v. Kiernan, (Citations omitted; Internal quotation marks omitted.)
241 Conn. 399, 406 (1997).
Returning to the first step in the analysis of whether the defendant owed a duty to the plaintiff, the court must determine the foreseeability of the plaintiff's injury, i.e. whether a reasonable person in the defendant's position, knowing what he knew or should have known, would have anticipated the harm that resulted from his actions. Id. My conclusion is that a reasonable person, in the defendant's position, knowing what he knew or should have known, would have anticipated that placing a beer keg on an open fire would result in some sort of explosion and danger to people gathered around the fire. In general, I believe that a reasonable person would know that beer kegs are metal containers which hold the beer under pressure, and, when heated, cause an expansion of gases within the container which will eventually result in an explosion.
Even if this were not so, there is a genuine issue of material fact concerning the defendant's actual knowledge of the danger of placing a beer keg on an open fire. The defendant was known to have constructed pipe bombs in his back yard and to have placed an unopened beer can into an open fire to see what would happen. He was warned by another person at the party that the beer keg seemed dangerous. He responded by saying that he would stand near the fire to protect her. Viewed most favorably to the plaintiff, the defendant knew, in a general way, that placing metal containers under intense heat could cause an explosion. The CT Page 1776 plaintiff has met the first prong of the duty analysis; foreseeability.
Turning to the second step in the analysis of the issue of duty in this case, there is no reason why the policy of the law should limit the consequences of the defendant's actions. The harm was not remote from the negligence in time or space. There is no public policy reason to limit the defendant's liability.
Alternatively, the defendant argues that the plaintiff should be precluded from recovery because the danger from the beer keg was open and obvious. Because this is an ordinary negligence case, not a premises liability case, the defendant's argument amounts to the defense of comparative negligence. Even if the plaintiff is assumed to have been negligent in failing to appreciate the danger posed by the beer keg, his negligence would not bar his recovery unless his negligence is greater than the negligence of the defendant in placing the beer keg in the fire. C.G.S. § 52-572h(b). The weighing of the negligence of each party is a jury function, not one to be made by the court on a motion for summary judgment.
The motion for summary judgment is denied.