Opinion
No. CV-07-5015031-S
November 18, 2009
MEMORANDUM OF DECISION
FACTUAL BACKGROUND
This complaint was filed by way of a writ and summons dated October 30, 2007. The plaintiff, Minerva Bermudez, alleges that she was walking into the front entrance of Yale-New Haven Hospital Inc.'s Primary Care Center, located at 800 Howard Avenue, New Haven, Connecticut, when she was caused to fall because of water on the floor. Yale-New Haven Hospital, Inc. is named as the only defendant. The plaintiff contends that the defendant's negligence and carelessness caused the injuries and losses.
The defendant filed a Memorandum of Law RE: Plaintiff Failed to Establish Defendant Had Notice of the Alleged Defect, dated September 16, 2009, arguing that the plaintiff has failed to allege or present evidence that the defendant, Yale-New Haven Hospital, Inc., had actual or constructive notice of the water on the ground in the front foyer of the Primary Care Center building.
LEGAL DISCUSSION
In the present case, it is undisputed that the plaintiff was a business invitee and that the defendant therefore had a duty to keep the hospital premises in a reasonably safe condition. Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140 (2002). It is well established that in the context of a negligence action based on a defective condition on the defendants' premises, "[t]here could be no breach of the duty resting upon the defendant unless [it] knew of the defective condition or were chargeable with notice of it . . ." Cruz v. Drezek, 175 Conn. 230, 235 (1978). "The controlling question in deciding whether the defendant had constructive notice of the defective condition is whether the condition 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." Id., at 238-39. "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." Morris v. King Cole Stores, Inc., 132 Conn. 489, 494 (1946).
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. Kapilotis v. Shop Rite Supermarket, Inc., 14 Conn.App. 250, 251 (1988); Schwarz v. Waterbury Public Market, Inc., 6 Conn.App. 429, 432-33 (1986). 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 and Shop Cos., supra, 29 Conn.App. 522. Both direct and circumstantial evidence may establish constructive notice. Id. However, evidence that goes no further than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant. Page v. Burger King Corp., Superior Court, judicial district of Hartford, Docket No. CV 96 05 61567 (July 2, 1998, Teller, J.).
In Gulycz v. Stop Shop Cos., 29 Conn.App. 519, cert. denied, 224 Conn. 923 (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 fact finder." Id., at 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 960561567 (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).
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 find in favor of the defendant 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 she saw, the substance was clear, wet and like a watery substance, but also testified that she never identified the substance. The plaintiff did not submit any evidence which would indicate that the defendant had any notice that the floor was wet. She 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.
CONCLUSION
With no factual basis for a finding that the defendant had actual or constructive notice of the defect that caused the plaintiff's fall so as to allow it to remedy the situation, the defendant is entitled to judgment as a matter of law.
Wherefore, judgment will enter for the defendant.