Opinion
CV176072191S
06-18-2019
Anna BARBARO v. LUCKY BRAND DUNGAREES STORES, LLC
UNPUBLISHED OPINION
Wilson, J.
FACTS
This action arises out of an alleged slip and fall incident that occurred on the premises of Lucky Brand Dungarees Stores, LLC, on March 17, 2017. The defendants, Lucky Brand Dungarees Stores, LLC, Lucky Brand Dungarees Stores USA, LLC, and Lucky Brand Dungarees USA, LLC, are limited liability companies duly organized under the laws of the State of Delaware, and are authorized to conduct business in the State of Connecticut. The plaintiff, Anna Barbaro, filed a three-count amended complaint in this action on November 13, 2017, against all three defendants sounding in premises liability.
The present motion for summary judgment concerns each of the defendants to this action.
In counts one through three of her amended complaint, the plaintiff alleges the following facts. At all relevant times, the defendants owned, operated, controlled, possessed, maintained and/or managed a commercial retail space known as the Lucky Brand Store (store) located at the Clinton Crossing Premium Outlet Facility, having an address of 20 Killingworth Turnpike, Clinton Connecticut (Clinton Crossing). On March 17, 2017, the plaintiff was a business invitee and lawfully on the premises of Clinton Crossing and the store. At approximately noon, the plaintiff entered the store from the open air mall area of Clinton Crossing. As the plaintiff entered the store, she was caused to trip and fall into a display. The plaintiff’s fall was the result of her tripping on a metal frame and/or a rubber mat located at the store’s entrance that was allowed to be in a raised position.
The defendants, through their agents, servants and/or employees, were negligent and careless in one or more of the following ways: (1) allowing a dangerous condition to exist at the entrance of the store; (2) the defendants knew, or in the exercise of reasonable and proper inspection should have known, about the dangerous and defective condition, a raised metal frame and/or rubber mat, and should have taken timely measures and remedies to correct the same, but failed to do so; (3) failure to keep the area inside the store at the entrance where the plaintiff fell in a reasonably safe condition for the plaintiff and other business invitees, when in the exercise of reasonable care it should have done so; (4) failure to conduct an adequate inspection of the area inside the store at the entrance of the store prior to the incident; (5) failure to warn invitees and the plaintiff of a dangerous and/or defective condition that existed inside the store at the entrance which was a well-traveled area; (6) breach of their duty to keep the store reasonably safe for all those who lawfully use the store; and (7) failure to block off or barricade the walkway to prevent people, such as the plaintiff, from walking in the area inside the store at the entrance. As a direct and proximate result of the plaintiff’s fall, the plaintiff sustained injuries and seeks damages.
On September 5, 2018, the defendants filed the instant motion for summary judgment as to counts one through three of the plaintiff’s amended complaint on the grounds that there are no genuine issues of material fact that a defect did not exist at the subject premises, and even if there was a defect, defendants did not have actual or constructive notice of any defect, which therefore entitles them to judgment as a matter of law. In support of their motion, the defendants filed a memorandum of law and exhibits. On November 1, 2018, the plaintiff filed an objection to the defendants’ motion for summary judgment accompanied by a memorandum of law and exhibits. The plaintiff argues that genuine issues of material fact exist as to the existence of a defect, whether the defendants had notice of the defect, and whether the defendant’s negligence was the actual and proximate cause of the plaintiff’s injuries. On January 9, 2019, the defendants filed a reply to the plaintiff’s objection to the motion for summary judgment. On February 6, 2019, the plaintiffs filed a surreply to the defendants’ reply to the plaintiff’s objection to the motion for summary judgment. Oral argument was heard on the motion at short calendar on February 19, 2019.
DISCUSSION
I
Legal Standard of Review
"[S]ummary 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." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016); see also Practice Book § 17-49. "The courts are in entire 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. The courts hold the 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 ... 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.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). "A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). "A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Emphasis omitted; internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 728, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
"Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320-21. "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed 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 presented to the court ..." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). "Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment ... [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings ..." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320-21.
"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 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 evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014). "In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011), overruled on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 325 n.18, 71 A.3d 492 (2013).
In the present matter, the defendants move for entry of summary judgment based on two grounds. First, the defendants argue that there is no genuine issue of material fact as to whether a defective condition existed on the premises that caused the plaintiff’s alleged injuries. Specifically, the defendants argue that they have submitted uncontroverted evidence that a specific defective condition did not exist on the premises that allegedly caused the plaintiff’s injuries. Additionally, the defendants argue that there is no genuine issue of material fact as to whether the defendants had actual or constructive notice of the alleged defective condition on the premises. In support, the defendants emphasize that the plaintiff repeatedly testified during her deposition that she was unsure what she tripped on at the premises or why she tripped. Thus, the defendants argue, the plaintiff’s testimony demonstrates that her claim lies in the field of speculation and conjecture because the plaintiff cannot identify what she tripped on with certainty. Moreover, the defendants argue that they have submitted uncontroverted evidence that the defendants did not have actual or constructive notice of any alleged defective condition on the premises.
In opposition, the plaintiff argues that the defendants’ motion for summary judgment should be denied because genuine issues of material fact exist as to the exact defect which caused the plaintiff’s injuries, whether the defendants’ negligence was the actual and proximate cause of the plaintiff’s injuries, and whether the defendants had actual or constructive notice of the defective condition. In support, the plaintiff argues that there is sufficient evidence upon which a reasonable jury could infer that the depressed carpet and metal frame outlining the carpet at the premises were the actual and proximate causes of the plaintiff’s fall and injuries. Further, the plaintiff argues that there is sufficient evidentiary support to raise a genuine issue of material fact that the defendants had actual or constructive notice of the specific defective condition identified by the plaintiff as the cause of her injuries.
II
Premises Liability
"In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). "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 procedure is especially ill-adapted to negligence cases, where ... 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 ... [T]he conclusion of negligence is necessarily one of fact ..." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
"In premises liability, [t]he law is clear that [a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.’ (Internal quotation marks omitted.) Mills v. The Solution, LLC, supra, 138 Conn.App. at 59, 50 A.3d 381." Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 48, 58 A.3d 293 (2013). "[I]n the context of a negligence action based on a defective condition on the defendant’s premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it." (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Ass’n, Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). "Typically, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it ... [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ... In the absence of allegations and proof of any facts that would give rise to an enhanced duty ... [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers." (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).
A
Specific Defect
"As our Supreme Court observed, to recover under our current law, the plaintiff [is] required to prove that the defendant had actual or constructive notice of the specific defect that caused the plaintiff’s injuries." (Emphasis in original, internal quotation marks omitted.) James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 179, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011). As such, when a plaintiff fails to identify a defective condition on the defendant’s premises, the defendant is entitled to summary judgment. See id.
In the present matter, the defendants argue that there is no genuine issue of material fact that a specific defective condition did not exist on the premises that caused the plaintiff’s alleged injuries. In response, the plaintiff argues there is a genuine issue of material fact as to the existence of a specific defective condition on the premises which caused the plaintiff her injuries.
In support of their motion for summary judgment, the defendants provide several exhibits in the form of affidavits and deposition testimony. In the affidavit of Christopher Strong, a manager of the Lucky Brand Jeans store located at Clinton Crossings, he avers to the following. Strong oversaw all operations of the store on or about March 17, 2017, including policies and procedures, opening and closing the store, as well as inspecting, vacuuming and lint rolling the entrance carpet located in the store. See Def.’s Mot. Summ. J., Ex. A, Strong Aff. 2:3-5. On March 17, 2017, and at all relevant times prior to this date, the interior front entrance of the store contained an entrance carpet cut into the surrounding concrete floor and was surrounded by metal trim. Strong Aff. 2:7. On March 17, 2017, at approximately 9:30 a.m., Strong unlocked the store and performed a routine walkthrough and safety inspection of the store premises, including the front entrance carpet and surrounding metal trim. Strong Aff. 2:8. On March 17, 2017 and at all relevant times prior to this date, the front entrance carpet and metal trim surrounding the carpet at the store were flush with the height of the surrounding concrete floor, and was in good condition, free from any defects or tripping hazards, and not in need of maintenance, repair or replacement. Strong Aff. 2:9-10-3:11.
Within one hour of the March 17, 2017 incident during which time the plaintiff fell upon entering the store, Strong inspected the front entrance carpet and surrounding metal trim a second time and confirmed that the carpet and metal trim were intact, free of any defects or dangerous conditions, and safe for public use. Strong Aff. 3:12. Further, Strong performed hundreds of walkthroughs and safety inspections between the start of his employment at the store on or about August 2016, and the incident of March 17, 2017, and at no time did he observe, encounter or become aware of a dangerous condition, safety concern or other defect on or involving the front entrance carpet or surrounding metal trim. Strong Aff. 3:13. Lastly, neither Strong’s employees nor any customers of the store ever report a complaint, concern, warning or notice of a problem, safety concern or defect pertaining to the front entrance carpet or surrounding metal trim prior to March 17, 2017. Strong Aff. 3:14.
During the deposition of Ryan Joseph, a mall security officer at Clinton Crossings, Joseph testified to inspecting the carpeting at the store following the plaintiff’s fall, and that he did not find anything that might cause someone to fall. See Def.’s Mot. Summ. J., Ex. C, Joseph Dep. 22:12-21. Further, Joseph testified to sliding his foot against the carpet where it transitions from carpet to the tiled floor to discern whether there was anything that would catch someone’s toe, and to taking photographs of the carpet at the time. Joseph Dep. 22:25-23:1-6. Joseph testified that he did not see any portion of the metal border sticking up that surrounded the carpet, and that it was level with the carpeting and floor. Joseph Dep. 23:10-23. Lastly, Joseph testified that in his judgment, there was no defect on the carpet. Joseph Dep. 27:3-5.
Additionally, the defendants cite to, and highlight that portion of the plaintiff’s deposition testimony wherein she testified that she could not identify the specific defective condition. During the deposition, the plaintiff testified that she was unsure as to what caused her to fall. See Def.’s Mot. Summ. J., Ex. B, Barbaro Dep. 22:2-11. Specifically, the plaintiff testified, "I’m not sure. You know, it could be the metal on the thing with my boot. The rug, that was kind of smashed down a little bit in spots ... I really don’t know what caused it, I don’t, not for sure. You know, I can’t swear on a stack of Bibles that that’s how I fell, but it happened at that spot right there, I know that." Barbaro Dep. 22:4-11. Similarly, when asked if the plaintiff could say whether either of her feet were caused to trip and fall as a result of the metal framing around the carpet, the plaintiff testified, "Well ... I’m not even sure about that. It could have been that. It could have been this (indicating). It could have been the rug. It could have been this here (indicating). I don’t know. I’d have to like take this boot, take a ride up there and see if it would fit under there or somewhere where it would catch. I don’t know because it’s all vague to me." Barbaro Dep. 92:25-93:1-10. Further, when asked if the plaintiff could specifically indicate what the dangerous condition was that allegedly caused her to fall, the plaintiff testified, "The dangerous condition. This (indicating) rubbing onto a carpeting that is a little maybe loose or a little bit- you know, I don’t know, it could have been here (indicating), it could have been the metal ..." Barbaro Dep. 94:15-22. Finally, when the plaintiff was asked if it was fair to say that she did not know what caused her to fall on the day in question, she testified, "Yeah, it’s a bit foggy to me. It’s fair to say it, yep, I’ll agree to that." Barbaro Dep. 95:17-20.
In opposition to the defendant’s motion for summary judgment, the plaintiff provides several exhibits in the form of affidavits and deposition testimony. In the plaintiff’s affidavit, she avers to the following. On March 17, 2017, she went with a friend, Clara Hart, to Clinton Crossings, and entered the Lucky Brand Jeans store through the right side of the double door entrance with the intention of walking to the right side of the store. See Pl.’s Memo. in Opp. to Def.’s Mot. Summ. J., Ex. 2, Barbaro Aff. 1:3. The plaintiff was wearing thick boots with rubber soles. Barbaro Aff. 1:4. As she entered the store, she walked across the recessed carpet at the entrance and felt the toe of her boot hit something which stopped its movement. Barbaro Aff. 1:5. This caused her to trip, fall forward, and hit her shoulder against a low lying display table, causing extreme pain and injury. Id. The plaintiff identifies the defective condition as the worn and compressed carpeting at the premises. Specifically, the plaintiff avers, "I believe that I tripped on the metal framing as a result of the carpet being worn and compressed when I stepped on it exposing the metal framing." Barbaro Aff. 3:11.
In further support, the plaintiff has submitted multiple affidavits of Paul Errico, the plaintiff’s expert witness and accident investigator. In Errico’s first affidavit, he avers to the following. Errico visited the defendants’ store and inspected the site of the injury sustained by the plaintiff. See Pl.’s Surreply, Ex. 1, Errico Aff. 1:3. In Errico’s opinion, based upon his review of the accident location and his discussions with the plaintiff, and with a reasonable degree of certainty, the rug located at the inside entrance of the defendants’ store was worn at the location identified by the plaintiff as the location of her contact with the frame surrounding the rug. Errico Aff. 1:4. Errico’s further opined, with a reasonable degree of certainty within the field of safety engineering, that the worn carpet compressed when stepped upon, exposing the metal frame which created an unreasonably unsafe condition. Errico Aff. 2:8. Errico further opined, that when the plaintiff stepped on the carpet, this action caused the carpet to compress, exposing a portion of the metal frame, which thus caused an unreasonably unsafe tripping hazard because the carpet was worn in the location where the plaintiff explained that she had tripped. Errico Aff. 2:9.
In Errico’s second affidavit, he avers to the following. Upon entry to the store during his inspection, Errico inspected the entire perimeter of the carpet and mat and located a section of worn carpet which was below flush with the metal framing on the right side of the carpet and entry to the store. See Pl.’s Surreply, Ex. 3, Errico Aff. 2:5. Errico measured the wear on the carpet and mat as opposed to the lip of the frame which was 9/16th of an inch, and in his professional opinion, this was encompassed under the definition of a slip or trip and fall hazard. Errico Aff. 2:10. Similarly, Errico testified during his deposition that he "measured the wear on the rug or the mat as opposed to the lip of the frame. It was 9/16ths of an inch. Which in my professional opinion fits under the definition of a slip, trip and fall hazard, unprotected." See Pl.’s Surreply, Ex. 2, Errico Dep. 57:7-11.
Upon review of the evidence submitted, the court concludes that the plaintiff has sufficiently identified the specific, defective condition that caused her to fall. The plaintiff identified the specific unsafe condition that caused her fall in her affidavit as the worn and compressed carpeting at the premises, which when stepped on, exposed the metal framing. Therefore, the plaintiff has demonstrated that a genuine issue of material fact exists as to the existence of a defective condition on the premises, and thus, has met her burden of opposing summary judgment.
B
Proximate Cause
The defendant contends that the plaintiff has failed to present a triable issue of fact as to the causation of the plaintiff’s injury, because there is no direct evidence that there was a dangerous defective condition in the entryway of the premises which caused the plaintiff to fall and sustain injuries.
As previously noted, "[t]o prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries ... [L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of ... legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct ..."Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions ..." (Internal quotation marks omitted.) Malloy v. Colchester, 85 Conn.App. 627, 633, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004).
The second component of legal cause is "[p]roximate cause [which is] defined as an actual cause that is a substantial factor in the resulting harm ... The test for proximate cause is whether the defendant’s conduct was a substantial factor in producing the plaintiff’s injury ... This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence ... The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citations omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321-22, 852 A.2d 703 (2004). "[I]ssues of proximate cause may be determined by way of summary judgment only in rare circumstances." Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011).
"Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident ... Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident ... The more likely than not standard ensures that the causal connection ... [is] based [on] more than conjecture and surmise." (Citations omitted; emphasis in original; internal quotation marks omitted.) Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 777, 83 A.3d 576 (2014). "A plaintiff can prove the elements of negligence using either direct or circumstantial evidence ... Circumstantial evidence need not be so conclusive as to exclude every other hypothesis ... Rather, circumstantial evidence must only [produce] in the mind of the trier a reasonable belief in the probability of the existence of the material fact." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 777-78. "Circumstantial evidence requires that the trier [find] that the facts from which the trier is asked to draw the inference are proven and that the inference is not only logical and reasonable but strong enough so that it can be found that it is more probable than otherwise that the fact to be inferred is true ... In contrast, impermissible conjecture and surmise would require a jury to infer a new set of facts from unproven or nonexistent facts." (Citations omitted; internal quotation marks omitted.) Id., 777 n.5. "[T]riers of fact must often rely on circumstantial evidence and draw inferences from it ... There is no rule of law which forbids the resting of an inference on facts whose determination is the result of other inferences." (Citation omitted.) Blados v. Blados, 151 Conn. 391, 395, 198 A.2d 213 (1964). Thus, a factfinder may draw inferences from circumstantial evidence.
Here, the plaintiff has submitted sufficient competent evidence, both direct and circumstantial, by way of testimony and affidavits, to demonstrate that material issues of fact exist as to the existence of a defective condition on the defendants’ premises, namely the "worn carpeting near the metal frame" including the metal framing, which caused her to trip and fall and sustain injuries.
C
Notice
"The relevant principles of premises liability are well established. A business owner owes its invitees a duty to keep its premises in a reasonably safe condition ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover ... Nevertheless, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her injury] or constructive notice of it ... [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ... In the absence of allegations and proof of any facts that would give rise to an enhanced duty ... [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers ... Accordingly, business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger. To defeat a motion for summary judgment in a case based on allegedly defective conditions, the plaintiff has the burden of offering evidence from which a jury reasonably could conclude that the defendant had notice of the condition and failed to take reasonable steps to remedy the condition after such notice." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116-17, 49 A.3d 951 (2012). To summarize, "[t]o hold the defendant[s] liable for her personal injuries . the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Bisson v. Wal-Mart Stores, Inc., 184 Conn.App. 619, 195 A.3d 707 (2018).
"Invitees fall into certain general categories ... A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." (Citation omitted; internal quotation marks omitted.) Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). There is no dispute here, that the plaintiff was a business invitee on the defendant’s premises at the time of her fall.
"A plaintiff can demonstrate that a defendant had actual notice of an unsafe condition by, for example, demonstrating that the condition was created by the defendant’s employee; see Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 607, 419 A.2d 339 (1979); or by presenting evidence that an employee, operating within the scope of his authority, observed the dangerous condition and either was charged with maintaining the area or was charged with a duty to report the unsafe condition. See Derby v. Connecticut Light & Power Co., 167 Conn. 136, 141-42, 355 A.2d 244 (1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1659, 44 L.Ed.2d 88 (1975)." Hellamns v. Yale-New Haven Hospital, Inc., 147 Conn.App. 405, 412, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.3d 652 (2014) (appeal withdrawn May 9, 2014). "The controlling question in deciding whether the defendant had constructive notice of the defective condition is whether the condition had existed for such a length of time that the defendants’ employees should, in the exercise of due care, have discovered it in time to have remedied it ... What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in light of the particular circumstances of each case. The nature of the business and the location of the defective condition would be factors in this determination. To a considerable degree each case must be decided on its own circumstances." (Internal quotation marks omitted.) Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 629.
"Constructive notice is triggered by a general duty of inspection or, when the dangerous condition is not apparent to the human eye, some other factor that would alert a reasonable person to the hazard." DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 118. "[A] defect lasting under a minute has been held to be, as a matter of law, insufficient for a defendant to have discovered and remedied it, and thus fatal to a premises liability action." Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 630. "There is no set period of time which is determinative. Compare, e.g., Kirby v. Zlotnick, 160 Conn. 341, 345, 278 A.2d 822 (1971) (defective porch railing existing for at least two weeks constitutes sufficient length of time to find constructive notice), and Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 286-87, 587 A.2d 1056 (1991) (jury reasonably could have concluded that failure to discover and remedy spilled aftershave lotion remaining on floor for fifteen minutes renders defendant chargeable with constructive notice), with White v. E&F Construction Co., 151 Conn. 110, 113-14, 193 A.2d 716 (1963) (defective condition existing for only two minutes prior to accident insufficient to charge defendant with constructive notice of defect) and Mason v. Wal-Mart Stores, Inc., Superior Court, judicial district of Hartford, Docket No. CV-10-6013281-S (May 1, 2012, Stengel, J.T.R.) (53 Conn.L.Rptr. 882, 883) (after court trial, court found that water from mulch bag on ground for mere sixty seconds insufficient to charge defendant with constructive notice)." Lussier v. Sun Valley Camping Cooperative, Inc., Superior Court, judicial district of Tolland, Docket No. CV-13-6006595-S (April 23, 2014, Mullins, J.). "In the absence of evidence that the claimed defect existed for such a length of time that the defendant, through exercise of due care by its employees, should have discovered and remedied it, we have affirmed the granting of summary judgment in favor of the defendant." Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 632-33.
In the present matter, the defendants argue that there is no genuine issue of material fact that the defendants did not have either actual or constructive notice of the alleged defective condition on the premises that caused the plaintiff her injuries. In response, the plaintiff argues that there is a genuine issue of material fact as to whether the defendants had constructive notice of the specific defective condition on the premises that caused the plaintiff her injuries.
In opposition to the defendant’s motion for summary judgment, the plaintiff provides several exhibits in the form of affidavits and deposition testimony. In Errico’s first affidavit, he avers to the following. In Errico’s opinion, with a reasonable degree of certainty, the worn carpet in combination with the exposed metal frame that surrounded the carpet, as a result of many years of heavy foot traffic, created an unreasonably unsafe condition which was the result of the failure to properly inspect the condition of the carpet on a regular basis. See Pl.’s Surreply, Ex. 1, Errico Aff. 2:6. Errico further opines that, "had reasonable inspections been performed on the recessed rug at the front of the store, the inspection would have revealed that the carpet was worn in many areas near the metal frame which could cause a customer’s foot to compress, even more than what existed, the worn carpet and expose the metal frame of the carpet to create a tripping hazard." Errico Aff. 2:7. In Errico’s second affidavit, he avers to the following. From his experience, the wearing of the carpet to a depth of 9/16th of an inch could not have occurred much less in the sixteen-month period of time dating back to the time of the accident, because the carpet and mat had been at the store for over five years and because it takes a lot of rubbing and friction to wear a carpet to such a degree. See Pl.’s Surreply, Ex. 3, Errico Aff. 3:11. In comparing his photographs of the worn areas of the carpet and mat taken during his investigation to photographs taken a few months after the plaintiff’s fall, the worn areas were almost identical. Errico Aff. 3:12. Furthermore, based on his review of these photographs and his discussions with the plaintiff, it is his opinion that the carpet and mat were in similar disrepair on the date of the accident as it was at the time of his inspection. Errico Aff. 3:14.
During Errico’s deposition, he also testified as to the conditions of the mat on March 2017. See Pl.’s Surreply, Ex. 2, Errico Dep. 60:20-25 - 61:1-13. When asked if he had any personal knowledge as to whether the conditions were the same on the date of his inspection as the date of the accident, Errico testified, "No, but from my experience, that wearing of the carpet to that depth couldn’t have been much less in a year’s period of time, because this mat has been there for over five years, and it takes a lot to wear it down, a lot of rubbing. Like I showed you in those previous photos, those spots, that took over a long period of time to do, to melt them down. It was the same thing with this. You’re not going to get much different from here. If anything, in that period of time, again, in my professional experience, you might get a 16ths of an inch, if that. Because it’s so close to it, you know, people don’t normally wear that close. So I based my opinion on where the accident occurred, that this has been like this for quite a while." Errico Dep. 61:1-13. Furthermore, Errico elaborated on his testimony, stating, "[O]ver a period of time, what happens is that this material gets worn down. Instead of bristles, you see what looks like an adhesive pad because the friction with the bristles, it melts down. So this is not something that’s happened over a year’s period of time. This has been happening over quite a long period of time. This mat has been in there since Lucky Brand has been there, and there was a store there before. So you’re talking about four or five years that we know of from that." Errico Dep. 62:6-15.
Therefore, based upon a review of the evidence submitted, the plaintiff has provided sufficient evidence to raise a genuine issue of material fact that the defendants either knew or in the exercise of reasonable care should have known about the alleged defective condition. There is sufficient evidence submitted that could lead a fact finder to conclude that the defendants would have noticed that the carpeting was worn by conducting a reasonable inspection. Additionally, a genuine issue of material fact exists as to whether the alleged defect existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it. The evidence submitted reasonably could lead a fact finder to conclude that the defect existed for a sufficient amount of time that the defendants, through performing daily inspections of the store’s entrance, should have noticed that the carpeting was worn, including the entrance carpeting and mat.
CONCLUSION
For the foregoing reasons, the court concludes that genuine issues of material fact exists, and therefore, the defendant’s motion for summary judgment is denied.