Opinion
No. CV03-0182136S
May 24, 2006
MEMORANDUM OF DECISION
Before the court is a motion for summary judgment on a one-count complaint sounding in negligence. The plaintiff alleges that he entered the defendant's store to buy some items and, while walking down an aisle, there was a slippery substance on the floor that caused him to fall and suffer serious injuries. The defendant moves for summary judgment on the grounds that the plaintiff cannot (1) identify the defect, (2) prove that the defendant knew or should have known about the defect or (3) prove that the defect existed for such a length of time that the defendant should have discovered the defect.
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 6, 882 A.2d 597 (2005).
"Typically, [f]or the 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." (Internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002).
The Connecticut Supreme Court has defined constructive notice as follows: "A possessor of land is charged with constructive notice of a dangerous condition when it is of such a nature and duration that a reasonable inspection would have disclosed the risk . . . Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant . . . Therefore, when a possessor of land fails to make or to have made a reasonable inspection which would have disclosed the dangerous condition, his negligent ignorance is, in the eyes of the law, equivalent to actual knowledge." (Emphasis in original; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990).
"Whether the defendant had constructive notice of this condition turns on whether the condition existed for a length of time sufficient for the defendant's employees, in the exercise of due care, to discover the defect in time to have remedied it." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). "While an abundance of evidence is not necessary to show a sufficient length of time existed for discovery of the condition . . . some evidence is required." (Citation omitted.) Id. "Where some evidence has been submitted, what constituted a reasonable length of time becomes a question of fact to be determined on the basis of the circumstances of the case." Id. "Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant." Morris v. King Cole Stores, Inc., 132 Conn. 489, 494, 45 A.2d 710 (1946). For the court to infer that the defect had existed for any length of time, the "inference must have some definite basis in the facts and the conclusion based on it must not be the result of speculation and conjecture." (Citation omitted; internal quotation marks omitted.) Gulycz v. Stop Shop Cos., supra, 29 Conn.App. 522.
In Colombo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002), the Appellate Court affirmed the Superior Court's directed verdict in favor of the defendant because the plaintiff merely characterized the milk spilled on the aisle floor as being "dirty" and only testified that when she got up from her fall, she was "dirty." (Internal quotation marks omitted.) Id., 64. The Appellate Court adopted the Superior Court's reasoning that "[t]he fact that the plaintiff got up and she was dirty is not evidence [from which] a rational juror could make an inference that the milk was there for such an extended period of time that the store reasonably should have found it if [the store] were conducting reasonable inspections . . ." (Internal quotation marks omitted.) Id.
In Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992), the Appellate Court affirmed the Superior Court's granting of the defendant's motion to dismiss for the plaintiff's failure to make out a prima facie case because "[t]he plaintiff offered no evidence, direct or circumstantial, to show that the defect had existed for any period of time so as to enable the court to exercise its function as factfinder." Id., 522. The court found no evidence to provide a definite basis in fact from which the court could infer that the defect had existed for any length of time. Id. The plaintiff testified that he saw the protruding hinge and screw on which he struck his knee, but did not introduce evidence as to whether witnesses or employees observed the defect before or after the accident. Id.
In Kelly v. Kmart Corp., Superior Court, judicial district of Waterbury, Docket No. CV 00 0162186 (November 13, 2003, Alvord, J.), the court granted the defendant's motion for summary judgment because the plaintiff failed to submit any evidence to show, or upon which the court could infer, how long the puddle of clear liquid was on the floor before the plaintiff fell. The plaintiff admitted to not knowing how long the puddle was on the floor. The court stated that, as a rule, evidence that goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant. Id. The defendant submitted evidence that an employee who was on duty when the plaintiff fell had walked down the aisle in which the plaintiff fell on the same morning several times before the plaintiff fell and had not observed any spills. The court rejected the plaintiff's argument that the liquid was clear and unobservable to a store employee. The court also rejected the plaintiff's argument that because the cleanup of a liquid substance on the floor in the shampoo aisle left a discoloration on the floor, there should be an inference that the substance had been present on the floor for a sufficient amount of time to give notice to the defendant of the condition. Id. The court concluded that the plaintiff's case fatally lacked evidence of the condition of the wet substance, such as whether the substance had been stepped in, or another condition that would tend to demonstrate that the claimed defect had existed for such a length of time that the defendant would or should have discovered it. Id. See also Page v. Burger King Corp., Superior Court, judicial district of Hartford, Docket No. CV 96 0561567 (July 2, 199,. Teller, J.) (plaintiff failed to submit evidence of condition of sandwich plaintiff allegedly slipped on in parking lot, i.e., whether sandwich had been walked on or driven on).
In Mercado v. Wal-Mart Stores, Inc., Superior Court, judicial district of Windham, Docket No. CV 99 0060680 (March 20, 2000, Sferrazza, J.), the court granted the defendant's motion for summary judgment because the plaintiff failed to submit any evidence tending to show, or upon which the court could infer, how long a grape was on the floor before the plaintiff allegedly slipped on the grape. The plaintiff admitted that she did not know how long the grape had been on the floor. The plaintiff testified that the aisle where the grape was located was well-traveled, but that the grape crunched when she stepped on it. The court found that the plaintiff's testimony did nothing to bolster the plaintiff's contention that the defendant had or should have had constructive notice of the grape. Id.
The question for this court is whether the plaintiff has submitted some evidence which would support an inference from which a trier of fact could conclude, without speculation and conjecture, that the specific alleged defect existed for a sufficient amount of time for the defendant, in the exercise of due care, to have discovered and to have remedied the defect. If the plaintiff's evidence goes no farther than to establish the existence of the specific defect alleged, the court must grant the defendant's motion for summary judgment in the defendant's favor because the plaintiff's evidence would not warrant the inference that the defendant had constructive notice of the defect.
The plaintiff admits to not knowing how long the wet substance had been on the floor and to not knowing how the substance got onto the floor. The plaintiff testifies that from what he saw, the substance was clear, wet and like a watery substance, but also testified that he never touched the substance to identify it. The plaintiff did not submit any evidence which would indicate that the defendant had any notice that the floor was wet. He has not provided any evidence of the condition and duration of the specific defect alleged or that goes farther than establishing the existence of the defect. The plaintiff additionally fails to provide any factual basis upon which the court can infer the length of time the defect existed.
The only evidence the plaintiff submits that might go farther than to merely establish the existence of the specific alleged defect is his deposition testimony that it had been pouring rain all day, that it was still pouring when the plaintiff entered the store and that someone might have tracked water into the store. The evidence that it was pouring rain that day is not evidence of the nature and duration of specific defect alleged (assuming that the alleged defect is a puddle of rain water) rather, it is evidence merely of the condition naturally productive of the defect. Such evidence does not warrant an inference of constructive knowledge. Further, the plaintiff's testimony that someone "possibly" tracked rain into the store is not factual. The fact that it was raining all day is not enough, without further facts, to infer that the wet substance the plaintiff allegedly slipped on was rain water that had been tracked into the store and to conclude, without speculation and conjecture, that the water had been tracked into the store long enough before the plaintiff allegedly slipped for the defendant to have discovered the water. The plaintiff's evidence thus fails to impute constructive notice to the defendant.
The defendant's evidence that the store manager did not notice any wet substance on the floor immediately after the plaintiff fell conflicts with the plaintiff's testimony that he slipped on a "wet, clear substance" to create a potential issue of material fact. Further, the plaintiff's evidence that there are no sweep logs but that the identity of the person who was in charge of sweeping the aisles at the time of the plaintiff's fall can be ascertained might be considered as creating an issue of fact as to when and how often the aisle in which the plaintiff fell was inspected and whether the alleged defect existed for some time before the plaintiff fell. The evidence, however, still fails to provide a factual basis upon which the court can infer that the specific alleged defect existed for some time before the plaintiff fell.
The court finds that there is no evidence from which a trier of fact could determine whether the defect existed long enough to impute constructive notice to the defendant.
Accordingly, the defendant's motion for summary judgment is granted.