Opinion
KNLCV176030380S
05-16-2019
Rachel BARIBEAULT v. WAL-MART STORES, INC.
UNPUBLISHED OPINION
OPINION
Calmar, J.
The defendants move for summary judgment on the ground that there is no genuine issue of material fact that they lacked notice of the defect that caused the plaintiff’s injuries, there is no evidence of recklessness, and there is no evidence that they had possession and control over the premises.
The plaintiff, Rachel Baribeault, in an amended complaint filed on December 3, 2018, alleges the following facts. At approximately 7:30 p.m., on April 21, 2017, the plaintiff, while proceeding to exit a Wal-Mart Store, located in Lisbon, Connecticut, tripped over a defective mat on the floor of the vestibule, causing her to fall and sustain injuries.
On March 22, 2019, the Friday before the court heard oral argument on the motion for summary judgment, the plaintiff filed a request to amend her complaint. The proposed complaint added seven additional counts (counts eleven through seventeen) that, essentially, allege a negligence cause of action based on the mode of operation rule. On April 5, 2019, the defendants objected to the request. "Whether to allow a party to amend the pleadings under Practice Book § 10-60(a) rests within the discretion of the trial court." Martinez v. New Haven, 328 Conn. 1, 15 n.13, 176 A.3d 531 (2018). The court considers the following to determine whether to grant a motion to amend: the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Id. In the present case, the court sustains the defendants’ objection and denies the plaintiff’s motion to amend. The plaintiff does not provide any reason why she filed the motion so late after the defendants filed two motions for summary judgments, the plaintiff filed the amendment on the eve of oral argument, and the request is prejudicial to the defendants. The motion to amend the complaint is denied.
The complaint contains nine counts against various defendants. Count one alleges negligence as to Wal-Mart Stores, Inc., Wal-Mart Associates, Inc., and Wal-Mart Stores East 1, Limited Partnership. Count two alleges negligence as to Sarah Bassett, the store manager of the Lisbon store at the time of the incident. Count three alleges recklessness as to Wal-Mart Stores, Inc., Wal-Mart Associates, Inc., and Wal-Mart Stores East 1, Limited Partnership. Count four previously alleged violations of General Statutes § 42-110b, the Connecticut Unfair Trade Practices Act (CUTPA), but the court struck that count and the plaintiff did not replead it. Count five alleges recklessness as to Bassett. Counts six and seven allege negligence and recklessness, respectively, as to Wal-Mart Stores East, Limited Partnership. Counts eight and nine allege negligence and recklessness, respectively, as to Wal-Mart Real Estate Business Trust.
On January 11, 2019, the defendants filed a motion for summary judgment on four grounds. First, there is no genuine issue of material fact that the plaintiff cannot prove notice of the specific defect that caused her to fall. Second, there is no evidence that the mode of operation rule applies here. Third, there is no evidence of recklessness. Fourth, there is no genuine issue of material fact that all of the defendants, except Wal-Mart Stores East, Limited Partnership, did not possess and control the premises. On January 24, 2019, the plaintiff filed her memorandum of law in opposition to the defendants’ motion, accompanied by exhibits. On February 22, 2019, the defendants filed their reply. On March 25, 2019, the court heard oral argument at short calendar.
The defendants, excluding Wal-Mart Stores East, Limited Partnership and Wal-Mart Real Estate Business Trust, previously filed a motion for summary judgment on August 20, 2018, accompanied by a memorandum of law and exhibits. They also filed a supplemental memorandum of law in further support of their motion on September 14, 2018. However, on September 24, 2018, the plaintiff filed a request to amend the complaint to add Wal-Mart Stores East, Limited Partnership and Wal-Mart Real Estate Business Trust as defendants. The defendants objected to the request, but the court overruled the objection on November 14, 2018. The plaintiff filed her amended complaint on December 3, 2018. The defendants then filed the present motion for summary judgment, relying on the same grounds from their previous motion.
On March 22, 2019, the Friday before the court heard oral argument on the motion for summary judgment, the plaintiff, without the court’s permission, filed a surreply and an affidavit of its expert witness Jeffrey Cissell, to which the defendants objected. The plaintiff then filed a motion for permission to file her surreply, to which the defendants again objected. Practice Book § 11-10(c) prohibits the filing of a surreply without the court’s permission. The court, however, has discretion to consider it. Viradia v. Quartuccio, Superior Court, judicial district of New Haven, Docket No. CV-17-6070053-S (February 27, 2018, Wilson, J.) (66 Conn. L. Rptr . 1, 4 n.3). Here, the court will not consider the plaintiff’s surreply or Cissell’s affidavit because they were filed on the eve of oral argument on the motion for summary judgment without the court’s permission.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "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 ..." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
Notice
The defendants first move for summary judgment as to all counts of the amended complaint on the ground that there is no genuine issue of material fact that there is insufficient evidence of notice because the bulge in the mat did not exist for a sufficient time to put the defendants on notice of the defect. The plaintiff argues that there is ample evidence of notice, creating a genuine issue of material fact of whether the defendants had notice of the mat’s bulging.
"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 [her] 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." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116-17, 49 A.3d 951 (2012). "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., 184 Conn.App. 619, 629, 195 A.3d 707 (2018). Circumstantial evidence can establish constructive notice. Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 287, 587 A.2d 1056 (1991).
In the present case, there is a genuine issue of material fact of whether the defendants had constructive notice of the bulging of the mat. Although there is no evidence showing that the defendants had actual notice of the defect, there is evidence suggesting that they had constructive notice. The store’s video recording of the mat shows it bulging numerous times in the hour before the incident. Employees also testify that the mat bulged. In particular, Ashley MacCory, a former employee, testifies that the mat (or a mat in the area where the plaintiff fell) bulged between fifty to one hundred times between January and April 2017. Further, the plaintiff’s expert witness, Jeffery Cissell, a professional engineer, reviewed the witnesses’ testimony, the video, and other evidence, and opines that, based on the evidence and his expertise, the bulging was "chronic." Accordingly, this evidence suggests that the defect existed for a sufficient length of time to put the defendants on constructive notice about the defective mat. See Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 78, 154 A.3d 55 (2017) (question of fact of whether defendant had constructive notice of lack of lighting and lack of handrail that existed months before incident).
The defendants argue the expert witness’ testimony is inadmissible because he improperly based his opinion on other testimony and the video. However, an expert may base his opinion on reports and other documents before trial. See Conn. Code Evid. § 7-4(b); Chebro v. Audette, 138 Conn.App. 278, 288, 50 A.3d 978 (2012).
Consequently, there is a genuine issue of material fact of whether the defendants would be on constructive notice of the defect in the mat. See Rivera v. CR Summer Hill, Ltd. Partnership, supra, 170 Conn.App. 78. This is not a case where the defect appeared mere seconds or minutes before the incident. Cf. Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 636; Correa v. Westfield America, Inc., Superior Court, judicial district of Middlesex, Docket No. CV-13-6010576-S (October 2, 2014, Aurigemma, J.). Rather, this is a case where a defect in the mat allegedly existed, albeit sporadically, months before the incident. In other words, the mat repeatedly bulging was a specific defect that kept arising over a period of time and the defendants’ employees kept remedying it. See Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 629. Thus, there is evidence suggesting that the defendants were on notice of the very defect that injured the plaintiff months before her injury, even if the employees kept taking temporary measures (adjusting the mat) to remedy that defect. See Donorovich v. Burger King Corp., Superior Court, judicial district of New Haven, Docket No. CV-13-6037591-S (May 8, 2015, Wilson, J.) (summary judgment was denied because store manager aware of prior instances where mats curled up, creating defect); see also Kirby v. Zlotnick, 160 Conn. 341, 345, 278 A.2d 822 (1971) (two weeks prior to incident sufficient time to discover defect). Although it is true that the specific bulge that caused the plaintiff’s injury did not appear until approximately two minutes before her injury, the evidence suggests that bulges existed, albeit in small intervals, for months before her injury. Whether those previous bulges created an overall defective condition of the mat or whether they existed for such a length of time is a question of fact. See Martin v. Stop & Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002). Therefore, the defendants’ motion for summary judgment on this ground is denied.
Because there is a genuine issue of material fact of whether the defendants had notice of the defect, the court does not reach the mode of operation rule because the plaintiff can prove her claims through a traditional premises liability action. See Fisher v. Big Y Foods, Inc., 298 Conn. 414, 419, 3 A.3d 919 (2010) (mode of operation rule is exception to notice requirement of traditional premises liability doctrine).
Recklessness
The defendants next move for summary judgment as to counts three, five, seven, and nine, which allege recklessness, on the ground that there is no genuine issue of material fact that they did not act recklessly. The plaintiff argues that she sufficiently pleads recklessness.
The plaintiff appears to misunderstand the court’s standard on summary judgment, which is to determine if there is any evidence to support the plaintiff’s allegations, not whether the allegations themselves are sufficient. See Gordon v. Gordon, 170 Conn.App. 713, 722-23, 155 A.3d 809, cert. denied, 327 Conn . 904, 170 A.3d 1 (2017). The law of the case doctrine also does not apply here for the same reason.
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003). "It is more than negligence, more than gross negligence ... [T]here must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... Wanton misconduct ... is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Id., 832-33. "[W]ilful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Id., 833.
In the present case, there is no genuine issue of material fact that the defendants did not act recklessly. There is no evidence showing that they or their employees purposely bulged the mat or deliberately ignored the defect. There is simply no evidence of highly unreasonable conduct. Although there is evidence suggesting the defect existed for a sufficient time before the plaintiff’s injury, there is no evidence showing a disregard of the plaintiff’s rights. Therefore, the defendants’ motion for summary judgment as to counts three, five, seven, and nine is granted.
Possession and Control
The defendants lastly move for summary judgment on the ground that there is no genuine issue of material fact that they, except Wal-Mart Stores East, Limited Partnership, did not possess and control the premises at the time of the plaintiff’s injury. The plaintiff does not dispute this argument, except as to Bassett, arguing she should remain liable because she was store manager at the time of the plaintiff’s fall.
"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). The determination of whether a duty exists is ordinarily a question of law. Id. The 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. Mills v. Solution, LLC, 138 Conn.App. 40, 59, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012). 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, supra, 261 Conn. 251. "The word ‘control’ has no legal or technical meaning distinct from that given in its popular acceptation ... and refers to the power or authority to manage, superintend, direct or oversee." (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).
In the present case, there is no genuine issue of material fact that all of the corporate defendants, except Wal-Mart Stores East, Limited Partnership, did not possess and control the premises at the time of the plaintiff’s injury. The defendants admit that Wal-Mart Stores East, Limited Partnership controlled the premises, but there is no evidence showing any other entity exercised possession and control over the store. Accordingly, the defendants’ motion for summary judgment is granted as to counts one and eight.
As to Bassett, although she exercised control over the store as store manager, she was not in possession of the store. Rather, Wal-Mart Stores East, Limited Partnership exercised possession and control over the premises. See LaFlamme v. Dallessio, supra, 261 Conn. 251. Therefore, the defendants’ motion for summary judgment is granted as to count two.
CONCLUSION
Accordingly, the defendants’ motion for summary judgment is granted as to counts one, two, three, five, seven, eight, and nine. The motion is denied as to count six.