Opinion
No. HHB CV055000526 S
May 15, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE #106.00
I. BACKGROUND AND PROCEDURAL HISTORY
On March 1, 2006, the plaintiff, Noreen Flint, filed a revised complaint against her son, the defendant David Shrake. The complaint sounds in negligence and alleges that while visiting at her son's home she "stepped onto a mat located in the bathroom . . . when suddenly the mat slipped from under her, causing her to fall and sustain [injuries]." (Revised Complaint, ¶ 3). It goes on to allege that the defendant was negligent in one or more of the following ways: "a) in that the defendant failed to install an adhesive mat in the area of the fall; b) in that the defendant failed to install hand railings or other means to avoid falls in the area; c) in that the defendant failed to warn the plaintiff that the mat was not properly affixed to the floor, by some form of adhesive material, floor mat, rubberized or other synthetic compound; d) in that the defendant, even though he knew or in the exercise of reasonable care should have known, that unless he took remedial actions he failed to take any actions to remedy the situation." (Revised Complaint, ¶ 4). The plaintiff claims that she was the invited guest of her son and that the incident occurred on a premises owned, controlled and maintained by him. (Revised Complaint, ¶¶ 1-2).
On March 20, 2006, the defendant filed a motion to strike on the ground that the revised complaint fails to state a cause of action for negligence. Specifically, the defendant asserts that it fails to allege that the defendant owed a duty to the plaintiff or that a defect existed on the defendant's premises. The plaintiff filed a memorandum of law in response on March 30, 2006 arguing that the allegations in the revised complaint set forth a sufficient claim for negligence on the basis that the defendant had a duty to maintain the premises in a reasonably safe condition and failed to do so. Thereafter, on April 7, 2006 the defendant filed a reply memorandum and oral argument was held before the court on April 10, 2006.
II. STATEMENT OF LAW
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [Courts] take the facts to be those alleged in the complaint . . . in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [courts] assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [courts] read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006); Practice Book § 10-39.
III. DISCUSSION
The revised complaint alleges that the plaintiff was an "invited guest" while on premises owned and controlled by the defendant. (Revised Complaint, ¶¶ 1-2). Reading the allegations in the manner most favorable to the plaintiff, the defendant may owe a duty to entrants, including the plaintiff. See LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). To address the issue of whether a cause of action has been stated by the plaintiff, the court must address two issues. First, what standard of care was owed to the plaintiff by the defendant and second, whether there existed a defective or dangerous condition sufficient to constitute a breach of that standard.
A. STANDARD OF CARE
"In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee." (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Ass'n., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). In the instant case it is not alleged that the plaintiff was a trespasser, but rather, she was an "invited guest" of the defendant. (Revised Complaint, ¶ 1). As a result of this characterization the court must determine whether the description of the plaintiff as an "invited guest" constitutes a licensee or invitee.
"A `licensee' is a person who is privileged to enter onto land by virtue of the possessors express or implied consent. The possessor of land owes no duty to a licensee to keep the premises in a safe condition and the licensee must take the premises as he or she finds them . . . An `invitee,' on the other hand, is a person who has been expressly or impliedly invited to go on the premises. A possessor of land owes a duty to an invitee to use reasonable care to inspect the premises and to maintain the premises in a reasonably safe condition." (Citation omitted; internal quotation marks omitted.) Gatzki v. Shafer, Superior Court, judicial district of Hartford, Docket No. CV 01 0808100 ( 40 Conn. L. Rptr. 521, 522).
"The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land. Although an invitation itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee." (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Ass'n., Inc., supra, 76 Conn.App. 320-21; see Pomponio v. New York N.H. H.R. Co., 66 Conn. 528, 537, 34 A. 491 (1895) ("Speaking generally, if the privilege of user exists for the common interest or mutual advantage of both parties, it will be held to be a case of invitation; but if it exists for the mere pleasure and benefit of the party exercising the privilege, it will be held to be a case of license.")
The defendant appears to concede in his memorandum of law that the plaintiff was an invitee. Taken as true, the revised complaint states that the plaintiff was the "invited guest" of the defendant, that the defendant was her son, and that she slipped and fell when she stepped on the bath mat in the defendant's bathroom. (Revised Complaint, ¶¶ 1-3). To find from these allegations that the plaintiff was more than a gratuitous licensee requires the word "invited" to bear a significant amount of weight. Compare Laube v. Stevenson, 137 Conn. 469, 473, 78 A.2d 693 (1951) (mother helping a daughter with the latter's baby and housework was a gratuitous licensee). In that the defendant has not contended that his mother was a licensee, the court will assume (but not decide) that the plaintiff was an invitee while on the defendant's premises.
"Relatives, while making short or transient visits are ordinarily classified as guests [i.e. licensees]." 62 Am. Jur. Premises Liability § 391, p. 740-41 (2005). While alleging that she had come from Middletown, Rhode Island to visit her son, it is unclear from the face of the revised complaint whether the plaintiff's visit was short or transient.
Assuming plaintiff's status as an invitee, it is now necessary to determine the standard of care relative to her status. "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." (Citation omitted.) Sevigny v. Dibble Hollow Condominium Ass'n., Inc., supra, 76 Conn.App. 320. Moreover, the standard of care has been codified by the Legislature. General Statutes § 52-557a provides that "[t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee."
B. ALLEGATION OF DEFECTIVE CONDITION In a premises liability action, "[t]o hold the defendant 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.) Martin v. Stop Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002) (business invitee). In the present case, the defendant moves to strike the revised complaint on the ground that the plaintiff has failed to make a legally sufficient allegation of a defective condition. In response, the plaintiff argues that the present allegations are sufficient and directs this court to Balla v. Lonergan, 143 Conn. 197, 120 A.2d 705 (1956), a case concerning a plaintiff-invitee slipping on a rug in a bedroom. The issue, therefore, is whether the plaintiff's allegation of an unattached bath mat on a bathroom floor is a sufficient allegation of a defective condition."It is perfectly clear that one who sustains injury in a fall on a floor . . . and who seeks to recover . . . on the ground that the fall was due to the defective condition of the floor or the floor covering must establish, as the foundation of his case, and before issues as to the proprietor's duty of care can be reached, that the floor on which he fell was, at the time of the accident, actually dangerous." Annot., Liability of Proprietor of Store, Office, or Similar Business Premise for Injury from Fall Due to Defect in Floor or Floor Covering, 64 A.L.R.2d 335, 345 (1959).
In Fabrizio v. Youhas, 148 Conn. 426, 172 A.2d 69 (1961), the plaintiff's decedent, a licensee, died after falling down cellar stairs owned by the defendant. Id., 427. The defendant appealed an adverse jury verdict, and our Supreme Court ordered the verdict set aside because the plaintiff failed to prove a cause of action within the purview of the allegations of the complaint. Id., 429-30. The plaintiff's specifications of negligence were "(1) that the cellar door opened inward; (2) that the cellar stairway had no railing; (3) that there was no landing at the top of the cellar stairway; and (4) that although all of these defective conditions were known to the defendants, or in the exercise of reasonable care should have been known to them, they failed to provide proper safeguards for the opening of the cellar door and stairway." (Internal quotation mars omitted.) Id., 427. The court found that the "complaint contained no allegation even suggestive of a violation of . . . duty" owed to a licensee. (Emphasis added.) Id., 428. Although Fabrizio v. Youhas, supra, involves the duty owed to a licensee, the holding by the court indicates that a plaintiff's allegations must at least suggest negligence by the defendant.
Although the plaintiff in the present case relies upon Balla v. Lonergan, supra, 143 Conn. 197, that case is distinguishable. There the plaintiff-babysitter was injured when she slipped on a loose rug in a bedroom assigned to her use. Id., 198. After an adverse jury verdict, the plaintiff appealed the trial court's instructions to the jury regarding contributory negligence and master servant law. However, the issue of whether the loose rug on a wooden floor constituted a dangerous condition was never challenged in the context of a motion to strike. Moreover, subsequent case law has not relied on Balla v. Lonergan for the proposition that an unattached rug on a smooth surface, alone, is a legally sufficient allegation of a defective condition, as the plaintiff now purports. In a premises liability action, courts must remain mindful that "the owner or occupant is not an insurer against accidents upon the premises, even as to a person whom he or she has invited to enter. The owner . . . has a duty to repair or maintain the premises in as safe condition as the nature of the premises reasonably permits, but is not required to become an insurer." 62 Am. Jur. Premises Liability § 31, p. 401-02.
In the context of master servant law, a plaintiff must allege more than "ordinary hazards" in order to sustain a negligence claim. See, e.g., Kuzio v. Roberge, Superior Court, judicial district of New Britain, Docket No. CV 06 0519016 (August 20, 2004, Cohn, J.) ( 37 Conn. L. Rptr. 764) (allegation that plaintiff-babysitter injured when washing dishes insufficient without more).
This sentiment is reflected in Deptula v. New Britain Trust Co., 19 Conn.Sup. 434, 116 A.2d 773 (1955), in which the court stated: "[I]f one desires complete protection against the ordinary hazards of everyday existence such as falls and illnesses, and the resulting burden of medical expenses and disability, a personal health and accident policy, the benefits of which are not dependent upon the determined liability in law of some other party, is the only solution. The case at bar proves the truth of this gratuitous observation." Id., 437-38.
The Deptula case involved a slip and fall on marble tiles in the lobby of a bank. The issue of whether the tile was a dangerous condition was not decided upon directly by the court.
In Boyle v. Farrell, 20 Conn.Sup. 56, 122 A.2d 28 (1956), a plaintiff was injured when a chair he was sitting in tipped forward. Although the court found that the plaintiff was an invitee, it went onto hold that: "Neither the chair upon which the plaintiff sat nor the wooden floor upon which it rested can be found to have been of such a character as to have imposed legal liability upon the defendant for the episode in question. In short, that episode uniquely comes within the realm of the kind of a happening best described as a `freak accident' which cannot be attributed to any dereliction on the part of the defendant." Id., 57. As in Boyle, the plaintiff's fall in this case appears to simply be an unfortunate accident and not the result of any defective condition.
Research has not revealed any Connecticut appellate authority on the direct issue of whether an allegation of an unattached bath mat, alone, is legally sufficient to plead the element of defective condition. Appellate authority from a neighboring jurisdiction has, however, addressed the issue. In Portanova v. Trump Taj Mahal Associates, 704 N.Y.S.2d 380 (A.D. 3 Dept. 2000), appeal denied, 95 N.Y.2d 765, 739 N.E.2d 295, 716 N.Y.S.2d 39 (2000), the appeals court denied an appeal from the trial court's granting of summary judgment in favor of the defendant where the plaintiff failed to put forth evidence giving rise to the inference of negligence. In that case, the plaintiff was injured when she slipped and fell on a cotton bath mat located on a bathroom floor. Id., 381. The court noted that "absent competent evidence of a defect in the surface . . . the mere fact that a plaintiff has fallen on a floor that is inherently smooth, and thus slippery, will impose no liability." Id., 382-83. Although dealing with a motion for summary judgment, Portanova is noteworthy for its determination on the merits that there was no liability where there was no evidence of defects. In the instant case, there is not even an allegation of the existence of any defects.
However, in Napolitano v. Dhingra, 672 N.Y.S.2d 369 (A.D. 2 Dept. 1998), the appellate court reversed a directed verdict for the defendant by the trial court where the plaintiff was injured when she slipped and fell on a throw rug. Id., 370. There, it was noted that "the plaintiff's evidence established a prima facie case of negligence . . . [T]he testimony of the plaintiff and a housekeeper, when viewed in the appropriate light, was sufficient to establish that the floor where the accident occurred was hard, smooth, shiny, and slippery, and that the throw rug did not have an appropriate backing to prevent it from moving when stepped on." Id. That case is distinguishable in that it was decided prior to the Portanova case and deals with testimony regarding the condition of the floor. Also, it does not address the issue brought forth by a motion to strike regarding the sufficiency of the allegations of a complaint. Again, in the instant case, there is no allegation as to the condition of the floor which could lead to the conclusion, either directly or by inference, that it was in a defective or dangerous condition at the time of the plaintiff's fall. Moreover, the court is not bound by the rulings of other jurisdictions.
Although in this case the plaintiff alleges the defendant was careless and negligent, the court finds that the allegations only depict an ordinary condition of everyday life. A bath mat is a commonly used household item and there is nothing in a reading of the revised complaint from which it could be inferred that it was used in any way other than in a customary and ordinary manner. A homeowner is not perpetually required to protect against any possibility that an invitee will hurt herself under plain, ordinary conditions. Moreover, "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." 2 Restatement (Second), Torts, Condition and Use of Land § 343A(1). Comment (e) to subsection (1) provides in pertinent part: "In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes . . . The possessor of the land may reasonably assume that he [the invitee] will protect himself by the exercise of ordinary care . . . Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them."
Further, 2 Restatement (Second), supra, Torts § 343, comment (e) provides in pertinent part: "In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance. One who enters a private residence even for purposes connected with the owner's business, is entitled to expect only such preparation as a reasonably prudent house holder makes for the reception of such visitors." In the present case, the plaintiff alleges that she slipped when she stepped on a bath mat in the defendant's bathroom. She further alleges that no adhesive was on the mat nor were there handrails to assist her in the bathroom. Although the plaintiff has alleged that the mat was unsecured, this allegation amounts only to the existence of an ordinary condition, and is within the standard of care an invitee is entitled to expect. 2 Restatement (Second), supra, Torts § 343, comment (e). The plaintiff has failed to make any allegation that the floor was somehow defective or in a dangerous condition, that the mat was of such character to make it defective or intrinsically dangerous, or, of such other facts that would give rise to a suggestion of negligence.
IV. CONCLUSION
The plaintiff has failed to allege that there was any defective or dangerous condition in existence at the time the plaintiff was on the defendant's premises which would breach his duty to the plaintiff as an invitee to inspect the premises and maintain it in a reasonably safe condition. Accordingly, the plaintiff has failed to state a cause of action and the motion to strike is granted.
So ordered.