Opinion
No. CV 03 0194778 S
July 8, 2004
MEMORANDUM OF DECISION
The plaintiff, Felicita Bonilla, brings this action against the defendant, Anthony Guevara, by way of writ of summons and complaint having a return date of May 20, 2003. The plaintiff subsequently filed a request for leave to amend her complaint, which amendment was not objected to and deemed filed by consent. See Practice Book Section 10-60.
In her amended complaint, the plaintiff alleges that she sustained personal injuries and other damages on June 20, 2001 as a result of a fall on a defective stairway located on premises owned by the defendant in Stamford, Connecticut. The plaintiff claims that she was an invitee on the defendant's premises when she "tripped and fell on the raised metal edge of a stair in the stairwell" of the premises.
The plaintiff makes various claims of negligence against the defendant relating to the condition of the stairwell. The defendant filed an Answer and Special Defense in which he denies the material allegations of the plaintiff's amended complaint and alleges as special defense that the plaintiff was comparatively negligent.
The defendant presently moves for summary judgment claiming there is no evidence that he had actual or constructive knowledge of the alleged defect. The defendant has submitted a certified copy of excerpted pages of the plaintiff's deposition in support of his motion. Counsel for the plaintiff did not object to the court considering the excerpted deposition, and further agreed at the hearing on the motion that the court could properly consider the deposition pages in deciding this motion.
The Appellate Court has noted that "[i]n interpreting [the Court's] decision in Esposito v. Wethered, 4 Conn.App. 641 (1985), the Superior Court has been split as to whether deposition testimony, either certified or uncertified, may be considered for purposes of a motion for summary judgment pursuant to Practice Book Section 384." Schratwieser v. Hartford Casualty Insurance Co., 44 Conn.App. 754, 759 n. 1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997) The Court stated that it has "not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment." Id.
The plaintiff filed an objection to the defendant's summary judgment motion. Therein, the plaintiff generally argues that the defendant failed to demonstrate "the absence of any genuine issue as to all material facts in the case," and that summary judgment is not favored in negligence cases. The plaintiff did not file any affidavits, documents or other evidence in support of her objection, or present any such evidence at the hearing on the motion. Rather, the plaintiff merely asserts the purported existence of genuine issues.
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." Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "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.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004).
"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 . . ." (Citation omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 83 Conn.App. 576, 581 (2004).
"[T]he party opposing . . . a motion [for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003).
In moving for summary judgment, the defendant argues that there is no evidence that the defendant had either actual or constructive notice of the alleged defective condition of the stair at issue. The defendant has submitted excerpted pages of the plaintiff's deposition showing that the plaintiff did not testify to any facts from which a trier of fact could reasonably conclude that the defendant had actual or constructive notice of the defect. The determinative issue for purposes of the present motion is whether the plaintiff presented adequate evidence to raise a genuine issue of material fact that the defendant had actual or constructive notice of the alleged defect.
The plaintiff testified in her deposition taken this past February that she used the stairway daily during the approximately eight months that she lived at the defendant's premises, and approximately five times on the date of the incident. The plaintiff was in the process of moving out of the defendant's premises on the date that she allegedly tripped and fell. The plaintiff does not recall ever having a problem with the stair at issue prior to her fall that day. The plaintiff offered no testimony that she was aware of the alleged defect prior to her fall.
The plaintiff did testify that when she first moved into the premises the defendant's wife, who is not a party to the action, told her that the "stairs were in bad shape and that she was going to have them repaired." Such a general allegation of disrepair is insufficient for purposes of notice. Boretti v. Panacea, Co., 67 Conn.App. 223, 228, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002) ("On the question of notice the trier's consideration must be confined to the defendant's knowledge and realization of the specified condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises").
Although the plaintiff alleges in her complaint that the defendant reasonably should have known of the alleged defective condition, she did not testify in her deposition or offer any other evidence concerning the length of time that the allegedly defective condition existed, or provide evidence inferentially leading to such a conclusion. The complaint merely alleges the existence of the condition.
It is a well-established rule in Connecticut that a "landlord is under a duty to use reasonable care to keep those parts of his building which are under his control in a reasonably safe condition . . ." (Internal quotation marks omitted.) McCrorey v. Heilpern, 170 Conn. 220, 221, 365 A.2d 1057 (1976). "In order to demonstrate a breach of this duty the plaintiff must show that the defendants had actual knowledge of the defect or that they were chargeable with constructive notice of it, because, had they exercised a reasonable inspection of the premises, they would have discovered it." Pollack v. Gampel, 163 Conn. 462, 468, 313 A.2d 73 (1972).
"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." (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990). "Whether the defendant had constructive notice of [the] condition turns on whether the condition existed for a length of time sufficient for the defendant . . . 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 529 (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 . . ." (Internal quotation marks omitted.) Id. "What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in light of the particular circumstances of each case." Pollack v. Gampel, supra at 469-70.
In Kelly v. Kmart Corporation, Superior Court, judicial district of Waterbury, Docket No. CV 00 0162186 (November 13, 2003, Alvord, J.), the plaintiff claimed that she was injured as a result of a slip and fall in the defendant's store. The defendant moved for summary judgment on the issue of notice. The plaintiff made no allegation that the defendant had actual notice of the alleged defect, which was clear liquid on the floor, and offered no evidence to prove actual notice. The only issue was whether the defendant had constructive notice of the defect.
The court concluded that the plaintiff failed to establish constructive notice. The plaintiff admitted that she did not know how long the puddle existed on the floor and offered no evidence from which the court could reasonably infer a time period. Therefore, the court granted the defendant's motion for summary judgment.
In Mercado v. Wal-Mart Stores, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. 99 0060680 (March 20, 2000, Sferrazza, J.), the plaintiff commenced an action against the defendant for personal injuries allegedly sustained when she slipped and fell on a single grape in an aisle of the defendant's store. The defendant moved for summary judgment on the issue of notice. The plaintiff offered no evidence on the issue of actual notice, and the only issue was whether the defendant had constructive notice of the defect. The plaintiff offered no evidence on how long the grape had been on the floor and no evidence to permit the court to infer how long the grape had been on the floor. In view of those facts, the court granted the defendant's summary judgment motion.
Mitchell v. Covone, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0089070 (July 17, 2002, Shapiro, J.), is a case involving similar facts. Therein, the plaintiff brought an action against the defendant-owner of his apartment house for injuries that he alleged suffered as a result of slipping and falling on a tread of a stair of the stairway leading to the plaintiff's apartment. During his trial to the court, the plaintiff testified that he could not identify the loose tread that caused him to fall, that he went up and down the steps daily and that he did not experience any problems with the stairs prior to his fall. The court rendered judgment for the defendant based on the notice issue.
Viewing the evidence most favorable to the plaintiff, the court concludes that the defendant has adequately demonstrated that there is no issue of material fact that the defendant did not have actual or constructive notice of the allegedly defective condition of the stair on which the plaintiff tripped. The plaintiff has failed to submit any counter-evidence on the issue of notice of the defect, and her deposition testimony does not support such notice. There is no evidence from which the court can find that the defendant had notice of the alleged defect either directly or circumstantially. The defendant would be entitled to a directed verdict on the same facts and, therefore, is entitled to a judgment as a matter of law.
Based on the foregoing, the defendant's motion for summary judgment (122.00) is granted.
BY THE COURT
TYMA, J.