MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT — #108

GERARD F. ESPOSITO, JUDGE.

ISSUE

The issue before the court is whether the court should grant the defendant's motion for summary judgment. The defendant's motion argues that because there is no genuine issue of material fact as to whether the defendant had actual or constructive notice of the defective condition on the floor, the defendant is entitled to judgment as a matter of law.

FACTS

On March 14, 2006, the plaintiff, Barbara Shaw, filed a one-count complaint against defendant, Kmart Corporation, alleging negligence. This action arises out of the injuries and damages the plaintiff allegedly sustained as a result of a slip and fall in the defendant's store. In the complaint, the plaintiff alleges that, while she was walking on the first floor of the defendant's store as an invitee, she slipped on a wet spot and fell backwards onto the floor, which caused her serious physical injuries. She further alleges that the wet spot on which she slipped was dirty and discolored and a heating duct located in the ceiling directly above the spot was discolored with rust as well.

On January 17, 2007, the defendant filed a motion for summary judgment on the ground that the plaintiff failed to establish that the defendant had actual or constructive notice of the defective condition. In support of its motion, the defendant has submitted a memorandum of law and a copy of the transcript of the plaintiff's deposition. On April 26, 2007, the plaintiff filed a memorandum of law in opposition to the motion. On June 8, 2007, the defendant filed a reply memorandum of law, accompanied by a copy of an affidavit of Christine Donicz, Kmart's store manager.

DISCUSSION CT Page 12533

"Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Beers v. Bayliner Marine Corp., 236 Conn. 769, 771 n. 4, 675 A.2d 829 (1996). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).

"In interpreting [the] decision in Esposito v. Wethered, 4 Conn.App. 641, 496 A.2d 222 (1985), the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment . . . Since [the] decision in Esposito, [the Appellate Court] has not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment." Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997), and cases cited therein. "While the plaintiff's deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support of entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996).

The defendant moves for summary judgment on the ground that the plaintiff failed to show that the defendant had actual or constructive notice of the presence of the specific wet spot that caused the plaintiff's injury. In response, the plaintiff argues that there is a genuine issue of material fact as to whether the defendant had actual or constructive notice of the wet spot and there is sufficient evidence that shows that the defendant had actual and constructive notice of the wet spot prior to the plaintiff's slip and fall.

"[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 . . . [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.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).

"The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006). "What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case . . . 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." (Citation omitted; internal quotation marks omitted.) Kelly v. Stop Shop, Inc., supra, 281 Conn. 777. "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.) Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 521, 615 A.2d 1087 (1992).

In the present case, the plaintiff claims that the defendant had actual notice of the wet spot that caused the plaintiff's injury. The plaintiff fails, however, to present sufficient evidence to support its claim. The plaintiff argues that the court can reasonably conclude that Donicz had actual notice of the wet spot, in light of her statement made immediately after the plaintiff's injury: "I can't clean up every spot in the store." The plaintiff states, however, in her deposition that she understood Donicz's statement to mean that the wet spots were throughout the store due to the weather. Moreover, Donicz's affidavit attests that she meant by that statement that "Kmart could not be expected to wipe up instantaneously every drop of water in the store as it fell from a customer's boot or cart." Thus, Donicz's statement alone is insufficient for the court to conclude that the defendant had been notified of the defective condition on the floor that caused the plaintiff's injury.

The plaintiff also claims that the evidence demonstrates that the defendant had constructive notice of the existence of the wet spot. The plaintiff fails, however, to offer any evidence, direct or circumstantial, to show that the wet spot had existed for any period of time. Instead, the plaintiff argues that, because it had stopped snowing the day before, the defendant's employees had a sufficient length of time to anticipate, observe and clean up any wet spots that were likely to accumulate on the floor. This argument has no merit because it does not demonstrate that the specific wet spot that caused the plaintiff's injury had existed for any length of time and it merely suggests that general conditions naturally productive of wet spots existed.

In addition, the plaintiff argues that her allegation that the duct located in the ceiling directly above the wet spot was discolored and her statement in her deposition that "the vents in Kmart are all rusted," also suggest that the defendant had constructive notice of the wet spot because the rusty condition of the duct indicates that water may have been leaking for a considerable period of time. This argument is also without merit. The plaintiff fails to provide any evidentiary basis for the court to infer that the specific wet spot had existed for any length of time since she offers no evidence to demonstrate when the water accumulated on that specific spot. Furthermore, the plaintiff states in her deposition that she did not know what caused the water to be on the floor; that she did not see any water leaking from the duct, but she assumed the water came from the duct in light of the amount of the water on the floor, the weather at that time and the fact that the ducts were rusty; and that she did not know how long the water was on the wet spot and found nothing to indicate how long the water was on the floor. Accordingly, based on the evidence adduced by the parties, the court finds that the defendant has met its burden of showing that there is no genuine issue of material fact as to whether the defendant had actual or constructive notice of the wet spot and the plaintiff failed to substantiate its adverse claim with evidence disclosing the existence of such an issue. Therefore, the defendant is entitled to judgment as a matter of law, and the court grants the defendant's motion for summary judgment.