Opinion
NNHCV156052680S
12-21-2016
Laurie Bragg v. The Stop and Shop Supermarket Company, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Jon M. Alander, J.
The plaintiff has filed this action for damages against the defendant asserting that she was injured when she fell in a parking lot maintained by the defendant. The plaintiff alleges that the defendant negligently failed to remedy or warn against the defect in the parking lot which caused her fall. The defendant has moved for summary judgment claiming that there is no genuine issue of material fact as to its lack of actual or constructive notice of the alleged unsafe condition.
The law governing the defendant's motion for summary judgment is well established. " Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575, 626 A.2d 1306 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158, 698 A.2d 938 (1997).
" It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence. If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks and citations omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06, 639 A.2d 507 (1994).
The plaintiff alleges in her complaint that on January 13, 2013, at approximately 4:00 p.m., while walking to her vehicle in the parking lot at the Stop & Shop Supermarket located at 136 Samson Rock drive in Madison, Connecticut, she stepped on " debris" which caused her to fall and suffer injuries. The defendant asserts that it is entitled to summary judgment because there exists no genuine dispute as to whether it had actual or constructive notice of the debris which caused the plaintiff to fall.
It is undisputed that the plaintiff was a business invitee of the defendant and that, consequently, the defendant owed the plaintiff a duty to keep its premises in a reasonably safe condition, Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002), and to warn an invitee of dangers that the invitee could not reasonably be expected to discover, Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). For the plaintiff to recover for the breach of a duty owed to her as an invitee, it was incumbent upon her to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused the decedent's fall or constructive notice of it. Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966). Our Supreme Court has repeatedly stated that " the 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." Id. See also, Cruz v. Drezek, 175 Conn. 230, 238, 397 A.2d 1335 (1978). The defendant must have knowledge of the specific 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. Monahan v. Montgomery, supra, 153 Conn. 390. See also, Mack v. Perzanowski, 172 Conn. 310, 312, 374 A.2d 236 (1977). " Accordingly, business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger. To defeat a motion for summary judgment in a case based on allegedly defective conditions, the plaintiff has the burden of offering evidence from which a jury reasonably could conclude that the defendant had notice of the condition and failed to take reasonable steps to remedy the condition after such notice." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 117, 49 A.3d 951 (2012).
In support of its motion for summary judgment, the defendant submitted portions of the deposition testimony of the plaintiff and an affidavit from David Rowe, the supermarket's perishable manager. In opposition to the motion for summary judgment, the plaintiff submitted a few additional pages of her deposition testimony. In her deposition, the plaintiff testified that she fell in the walkway of the parking lot upon exiting the supermarket. She stated that she did not see anything on the ground before she fell and she did not specifically know what caused her fall. After she got up from the ground, she saw a plastic push pop cap, which was approximately two inches long, on the ground. The defendant believes that the cap " may have been" under her foot when she fell.
The defendant offered evidence that it did not have actual notice of the cap being on the ground prior to the plaintiff's fall. In his affidavit, Rowe averred that he did not see the cap prior to the incident and that he had not received any complaints regarding the cap or any other debris in the parking lot on the day of the incident. The plaintiff did not submit any evidence that any employees of the defendant were aware of the existence of the cap prior to the defendant's fall. The plaintiff apparently concedes that she has no evidence of actual notice as she limited her argument, both in her brief and at the hearing, to that of constructive notice.
" 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. 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." (Internal quotation marks and citations omitted.) Considine v. City of Waterbury, 279 Conn. 830, 870, 905 A.2d 70 (2006). The plaintiff has submitted no evidence that the presence of the plastic pop up cap on the ground had existed for such a sufficient length of time that the defendant should have discovered it in the exercise of a reasonable supervision of the parking lot. The defendant testified in her deposition that she did not know how long the cap was on the ground before the fall. Rowe stated that he had not received any complaints regarding the cap or any other debris in the parking lot on the day of the incident. The evidence that was submitted indicates that the length of time that the cap was on the ground was relatively short. The plaintiff in her deposition testified that she entered the supermarket using the same walkway fifteen minutes prior to her fall and didn't see the cap. Rowe stated in his affidavit that the cap looked new and was not damaged, broken or otherwise worn, indicating that it had not been long exposed to foot traffic or the elements.
The plaintiff argues that constructive notice can be found in Rowe's statement that the store contracts with a cleaning company to power sweep the parking lot and remove trash and other debris and his statement that store employees are instructed to pick up trash and debris when it is spotted on the ground. She argues that these statements show that the defendant had notice that debris is often present in the parking lot. The flaw in this claim is that the defendant must have constructive notice of " the very defect which occasioned the injury" and " such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises." Monahan v. Montgomery, supra, 153 Conn. 390.
The evidence and proof submitted by the parties show that there is no genuine issue as to a material fact and that the defendant is entitled to judgment as a matter of law. Accordingly, the defendant's motion for summary judgment is hereby granted.