Opinion
KNLCV186032751S
04-05-2019
Annie GACHINSKY v. WAL-MART STORES, INC.
UNPUBLISHED OPINION
OPINION
Knox, J.
The defendant, Wal-Mart Stores, Inc., filed a motion for summary judgment on the complaint filed by the plaintiff, Annie Gachinsky, pursuant to Practice Book § 17-44. The defendant claims summary judgment should enter for the defendant and against the plaintiff for the following reasons: (1) there is no evidence that the defendant had actual or constructive notice of the specific defect or condition that the plaintiff alleges caused her to fall; (2) the mode of operation rule alleged by the plaintiff is not applicable to this case; and (3) the plaintiff’s accident was not caused by any act or omission of the defendant, but by the plaintiff’s own conduct. Further, the defendant argues that the plaintiff has failed to proffer any affirmative act by which the defendant could be found liable.
Practice Book § 17-44 provides in relevant part: "In any action, including administrative appeals which are enumerated in Section 14-7(c), any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial."
FACTS
On December 8, 2017, the plaintiff filed a complaint sounding in premises liability. The plaintiff alleges that she was injured on April 13, 2017, in a Wal-Mart store located in Waterford, Connecticut. The plaintiff claims that when she reached up in an attempt to obtain a roll of bubble wrap, bubble wraps fell off the shelf toward her causing her to fall and sustain injuries. The defendant has denied liability and damages and alleges comparative negligence.
The defendant filed a motion for summary judgment on February 1, 2019. The defendant filed a memorandum of law in support as well as the signed and sworn affidavit of the store manager, Christopher McGinty. deposition excerpts, and a series of photographs from video surveillance in the store showing the incident. The entire video was offered without objection and marked as a court exhibit for the limited purpose of the hearing on the motion for summary judgment. In response, on March 8, 2019, the plaintiff filed an objection to the motion for summary judgment, as well as two uncertified deposition excerpts of witnesses McGinty and Zaidamarie Lucena-Martinez, another store manager. The court notes that Practice Book § 17-45(a) requires that depositions be certified. In the present case, both parties rely upon different portions of McGinty’s deposition, as a result, the court will consider McGinty’s deposition as a certification was proffered by the defendant. The court has not considered Lucena-Martinez’s deposition, which is unauthenticated. On March 21, 2019, the defendant filed a reply. On March 26, 2019, the plaintiff filed a surreply, for the purpose of filing an affidavit by the plaintiff. The defendant, at the hearing on the motion for summary judgment, objected to the plaintiff’s surreply. While the Practice Book does not provide any authority to file a surreply, the court provided the defendant with an opportunity to respond to the surreply on the merits at the hearing and has considered the plaintiff’s affidavit herein.
Practice Book § 17-45(a) provides: "A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents."
DISCUSSION
"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). "If the plaintiff, however, alleges an affirmative act of negligence, [that is], that the defendant’s conduct created the unsafe condition, proof of notice is not necessary ... That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof." (Internal quotation marks omitted.) Id., 777. Additionally, the mode of operation rule provides another exception to the traditional premises liability doctrine, which dispenses with the requirement that a plaintiff prove that a business owner had actual or constructive notice of the specific unsafe condition giving rise to the plaintiff’s injury. Fisher v. Big Y Foods, Inc., 298 Conn. 414, 424, 3 A.3d 919 (2010).
Pursuant to Practice Book § 17-49, summary 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." "To satisfy [its] 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." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
In the present case, the defendant denies notice of the "condition which caused the [p]laintiff to fall, moving bubble wrap ..." (#117.00). However, this mischaracterizes the plaintiff’s claim which arises from how and where the merchandise, the bubble wrap, was displayed. In her complaint, the plaintiff alleges that:
(a) [the defendant] allowed, permitted and/or took no steps to prevent business invitees, including the [p]laintiff, from accessing merchandise above their heads;
(b) [the defendant] failed to warn the [p]laintiff, ANNIE GACHINSKY, of the inherent danger of merchandise falling from open shelves;
(c) the [d]efendant, its agent, members, servants, representatives, and/or employees failed to take reasonable steps to prevent merchandise from falling from the top shelf of the subject display area;
(d) the [d]efendant knew, or should have known that the mode of operation for the subject Wal-Mart store caused falling hazards that could occur regularly, or are inherently foreseeable, due to the warehouse nature of the Wal-Mart operations;
(e) the possibility of merchandise falling on customers, including the [p]laintiff, ANNIE GACHINSKY, was foreseeable or was reasonably foreseeable based upon the stacking of the bubble wrap; and
(f) by stacking the bubble wrap on the top shelf, one on top of the other, the defendant, its agents, servants and employees knew or should have known of the increased risk of the injury to its patrons due to falling merchandise hazard.
In addition, the plaintiff and the defendant each rely on portions of the testimony of the store manager, McGinty, who was not responsible for the bubble wrap and did not witness the incident, but responded to the plaintiff’s fall. The deposition testimony of McGinty, however, included his report of the incident. In his incident report, McGinty describes that rolls of bubble wrap were "stacked high on top shelf," that two rolls fell, and "items falling from shelf caused fall" (#129.00). "When deciding a summary judgment motion, a trial court may not resolve credibility questions raised by affidavits or deposition testimony submitted by the parties." Doe v. West Hartford, 328 Conn. 172, 197, 177 A.3d 1128 (2018). The defendant has failed to show that there is not a genuine issue of material fact with regard to the stacking of the subject merchandise. As such, the defendant has failed to show that there is not a genuine issue of material fact with regard to either an affirmative act or the mode of operation by the defendant.
Finally, the defendant relies on its version of the video surveillance of the incident to dispute the plaintiff’s allegations of the complaint, which are supported by her affidavit. While the plaintiff’s affidavit is a slim reed upon which to find a genuine issue of material fact, "[i]t is only when the witnesses are present and subject to cross examination that their credibility and the weight to be given to their testimony can be appraised." (Internal quotation marks omitted.) Id. It is fundamental that, when ruling on such a motion, a trial court is limited to determining whether a material factual issue exists; it may not then proceed to try that issue on the summary judgment record, if the issue does exist. See, Id. Whether the plaintiff’s testimony is to be believed is a question of credibility, which is a determination made by the trier of facts. Sun Val, LLC v. Commissioner of Transportation, 330 Conn. 316, 330, 193 A.3d 1192 (2018).
CONCLUSION
In sum, the defendant has not shown there is no genuine issue of material fact, the motion for summary judgment as to the plaintiff’s complaint is denied.