Opinion
FBTCV166054780S
03-15-2017
Kristin Williams v. The Stop & Shop Supermarket Co., LLC
March 15, 2017, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendant The Stop & Shop Supermarket Co., LLC (" Stop & Shop") has moved for summary judgment to dismiss the claim of plaintiff Kristin Williams that she was injured due to the negligence of defendant when a wheel fell off the shopping cart she was using. Stop & Shop asserts that summary judgment is appropriate because there is no evidence that the store knew or should have known that a hazardous condition existed. For the reasons stated below, the motion is denied.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting HO.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
There are Genuine Issues of Material Fact as to Constructive Notice of the Defective Wheel
In Martin v. Stop & Shop Supermarket, 70 Conn.App. 250, 251, 796 A.2d 1277 (2002), the Appellate Court stated the elements needed to prove a premises liability case:
The plaintiff was a business invitee and, therefore, the defendant owed the plaintiff the duty to maintain its premises in a reasonably safe condition . . . To 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" . . . It is within the province of the trier of fact to determine whether a defective condition existed. (Citations omitted.)
Stop & Shop bases its motion on plaintiff's deposition testimony that she was using the cart without noticing any defect for fifteen minutes before the " wheel popped off . . ." The essence of defendant's argument is that defendant had no actual notice of the defect and if plaintiff did not notice any defect after using the cart for fifteen minutes there is no proof of constructive notice by defendant of the defect. The problem for defendant is that it bears the burden of showing there is no genuine issue of material fact to be tried. See e.g., Appleton v. Board of Education, 254 Conn. 205, 209 (2000). Defendant must establish that it would be entitled to a directed verdict on the evidence presented on the motion because there is no triable issue of fact. See Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 627, 57 A.3d 391 (2012).
In Mott, 139 Conn.App. at 631-32, the Appellate Court reversed the granting of summary judgment by the trial court concluding that defendant had failed to prove there was no genuine issue of material fact as to its actual or constructive notice of the defect alleged to have caused plaintiff's injury. Mott was a premises liability case based on a slip and fall in an icy parking lot, but its description of the duties owed to protect a business invitee from known, foreseeable dangers is equally applicable here:
The operative complaint in the present case contains a single count sounding in negligence on a theory of premises liability. The defendant conceded in its motion for summary judgment that the plaintiff was a business invitee of the defendant and, as such, that the defendant owed him a duty of care to keep its premises in a reasonably safe condition. " Typically, under traditional premises liability doctrine, [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." 139 Conn.App. at 627-28.
The affidavit of the store manager does not suffice to prove that no reasonable jury could conclude that Stop & Shop could not have discovered the wheel was defective if it had visually inspected the cart before the accident.
The Assistant Store Manager's affidavit shows there is a disputed issue of fact as to whether the cart was effective.
In Dipietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 117-18, 49 A.3d 951 (2012), the Supreme Court held that a duty to inspect may support constructive notice. " Business owners are chargeable with constructive notice of a dangerous condition when, had they exercised reasonable care, they would have discovered the condition. 2 Restatement (Second), Torts § 343 (1965). Constructive notice is triggered by a general duty of inspection or, when the dangerous condition is not apparent to the human eye, some other factor that would alert a reasonable person to the hazard." Here, favorably construing the facts for plaintiff, it cannot be said that a defect that would cause a cart wheel to " pop off" after fifteen minutes of use could not have been discovered if the store had visually inspected the cart as part of an ongoing inspection of shopping carts provided to its customers. This is not a case like Cataldo v. Waldbaum, Inc., 244 A.D.2d 446, 664 N.Y.S.2d 126 (1997), where the store established that it regularly inspected and removed defective carts. Further, under our rules it was defendant's burden to prove the absence of genuine material issues of fact before plaintiff is tasked to provide evidential facts to refute the showing there are no triable issues of fact. See Mott, 139 Conn.App. at 627. Defendant has failed to demonstrate that plaintiff could not prove at trial that Stop & Shop had constructive notice of the claimed defect, therefore its motion for summary judgment must be denied.