Opinion
No. CV 07-5012033 S
July 15, 2010
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#159 #160)
Facts and Procedural History
This action arises from injuries sustained by the plaintiff, Stephen Link, as the result of his August 25, 2006 fall on premises maintained by the defendants, BJ's Wholesale Club, Inc. ("BJ's") and Konover Development Corp. and Developer's Realty (collectively referred to as "Konover"). Konover leases the building on the premises, where the plaintiff allegedly fell, to BJ's, which operates a wholesale club store. The plaintiff alleges that the defendants were negligent in that they failed to discover a slippery condition that caused his fall. The defendants filed motions for summary judgment on May 5, 2010 and May 14, 2010. As the defendants make the same arguments in support of summary judgment, both motions will be addressed in this decision. The plaintiff filed his objection and memorandum in opposition on May 19, 2010. The defendants filed their reply on June 14, 2010. The motions were heard at short calendar on June 15, 2010.
Discussion
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"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. The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control . . . [L]andlords [however] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant." (Internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105 (2010).
Moreover, "[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 . . . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers." (Emphasis added; internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007) (adopting the "mode of operation" rule, which allows plaintiff to prove notice by demonstrating that defendant business owner's self-service mode of operation created a foreseeable risk of injury).
BJ's argues that it is entitled to summary judgment because the plaintiff cannot identify the precise location of his fall. Pursuant to the lease between BJ's and Konover, BJ's, as the lessee, is responsible for maintaining the building and the adjacent sidewalks. Konover, as the lessor, maintains the parking lots and driveways. Additionally, both of the defendants argue that they are entitled to summary judgment because the plaintiff cannot identify the specific defect that caused him to fall. The defendants point to the plaintiff's deposition in support of their arguments.
The court notes that the defendants produced a complete, certified copy of the lease agreement and of the plaintiff's deposition in response to the plaintiff's argument that the court cannot consider uncertified deposition transcript excerpts in deciding this motion.
In his deposition, taken on September 30, 2009, the plaintiff stated that he "slipped on the garbage in front of the store" which was wet because it had been raining. He continues: "The reason for my fall was the fact that everything that was laying under and around the plant stands and the garbage that had not been picked up. The place was crawling with litter . . . were then brought down into the lower-lying areas because of the defective drainage, which they subsequently repaired, and the heavy rains produced the ponding of these materials, and I apparently hit one of those ponded areas with the garbage."
The plaintiff counters that in his deposition, he does identify the specific condition that caused him to fall, namely, garbage and debris in front of the store. Furthermore, the plaintiff attaches an affidavit to his opposition memorandum, dated May 12, 2010, in which he attests to the following. "I am familiar with the facts and circumstances surrounding my injury that occurred while shopping at BJ's Wholesale, Inc. Torrington, Connecticut on August 25, 2006 . . . While exiting the store at BJ's on said date, I slipped and fell on plant material on the ground that came from outdoor plant racks. There was also all forms of garbage and litter on the ground that contributed to my fall . . . The area where my fall occurred was at the junction of the crosswalk and the sidewalk in front of the store."
The plaintiff, in producing this affidavit, has identified the specific unsafe condition that caused his fall. This case is distinguishable from the factual scenario presented in Kubera v. Barnes Noble Booksellers, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5012729 (March 10, 2009, Elgo, J.). In Kubera, the plaintiff "hit something" and fell forward in the defendant's store, which she described as being in "disarray," with scattered tables and chairs.
In her deposition, the plaintiff was unable to identify what caused her to fall, although she did not believe it was any of the chairs or tables that were scattered in the cafe area. The plaintiff was also unable to identify whether she tripped on the carpet or tile portion of the aisle. She testified that because she was looking up for the women's sign, she was unable to identify what caused her to trip. She maintained, however, that the general disarray of the cafe area was the defect for which the defendant was negligent. The court disagreed and found that even if the cafe area was in a defective condition at the time of her fall, the plaintiff failed to establish that this condition caused her to suffer injury. In granting summary judgment, the court noted: "The mere fact that the plaintiff fell in the defendant's store does not warrant the presumption or inference that the defendant caused her injury and was therefore negligent."
Here, the plaintiff identified a specific, defective condition that caused his fall and also, identified where on the premises that he fell. By stating that he fell in the `junction of the crosswalk and the sidewalk in front of the store," he has shown that there is a genuine issue of material fact as to which defendant is responsible for the area of the premises where he slipped because BJ's is responsible for the sidewalks and Konover is responsible for the parking lot, including the crosswalk. As such, the plaintiff has met his burden of opposing summary judgment.
The court notes that although the plaintiff's affidavit sufficed to defeat this motion, the plaintiff is likely to encounter credibility issues if this case proceeds to trial. In his deposition, the plaintiff originally offered a vague statement of the condition that caused his fall and could only identify the front of the store as the area in which he fell. His affidavit, however, miraculously clarified both the condition that he fell upon and the precise location of his fall.
Conclusion
For all of the foregoing reasons, the defendants' motions for summary judgment (#159 #160) are hereby denied.