Opinion
DBD-CV-14-60150741-S
01-22-2016
LORI CLAIRMONT v. GERA DANBURY, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, NO. 122.00
Anthony D. Truglia, Jr., J.
The defendant, Gera Danbury, LLC, moves for summary judgment in the above-captioned personal injury action. The defendant argues that in order for the plaintiff, Lori Clairmont, to prevail on her premises liability claim, she must demonstrate that: (1) there was a specific defect in the defendant's business premises that caused her injuries; and (2) the defendant had prior notice of the specific dangerous or defective condition alleged. The defendant argues that, in the present case, the plaintiff is unable to identify with any specificity the defect or dangerous condition on the defendant's premises that caused her to fall. The defendant then argues that even if there had been a dangerous or defective condition, the plaintiff is unable to prove that the defendant had actual or constructive notice of it. Thus, the defendant contends that the plaintiff would be unable to prove the essential elements of a premises liability case at trial, and it is entitled to summary judgment in its favor as a matter of law.
I. FACTS AND PROCEDURAL HISTORY
In support of her claims against the defendant, the plaintiff alleges the following facts in her revised complaint (#110.00). The defendant is the owner of a commercial office building located at 39 Ridgebury Road in Danbury, Connecticut (premises). The building includes offices, amenities (including a cafeteria for the building's occupants) and a parking garage. On or about May 29, 2012, the plaintiff was walking from her office in the defendant's complex along a foyer leading to the parking garage across from the cafeteria. Just before she reached the parking garage, she slipped and fell on the foyer's marble tile floor. She alleges that she sustained serious injuries as a result of this fall, which she ascribes to the negligence of the defendant. The plaintiff alleges that her injuries were caused by the defendant's carelessness and negligence in one or more of the following ways: (1) it failed to inspect the foyer and surrounding area in order to make it reasonably safe for business invitees such as the plaintiff; (2) it maintained the foyer in an unsafe and dangerous condition " by permitting and allowing the marble tile to become slippery and gritty in a place where business invitees were expected to walk"; (3) it failed to warn the plaintiff of this dangerous condition; (4) it failed to remedy this dangerous condition when it knew or should have known that this condition could cause injury to the plaintiff and others; and (5) it failed to take reasonable precautions to protect the plaintiff from this dangerous condition, including, but not limited to, replacing the slippery, gritty marble tile in question.
In support of its motion, the defendant has submitted: (1) excerpts from the plaintiff's deposition testimony in which she describes the incident; (2) a copy of an internal accident investigation report which was prepared by the defendant's manager on the day of the incident; and (3) excerpts from the defendant's responses to the plaintiff's written interrogatories which verify that the defendant received no complaints regarding similar incidents in the area where the plaintiff was injured. The defendant argues that the evidence from these three sources, none of which is disputed by the plaintiff, supports its contention that: (1) there was no defect on its premises when the plaintiff was injured; and (2) even if the trier of fact did find that a defective or dangerous condition existed on the premises, there is no evidence that the defendant had actual or constructive notice that would have allowed it to recognize the alleged danger and remedy it.
In response, both in her memorandum in opposition to the motion and in oral argument, the plaintiff argues that the defendant has failed to establish that there is no genuine issue of material fact in this case that would entitle it to a directed verdict at trial. The plaintiff argues that she has, in fact, shown that there was a dangerous and/or defective condition on the premises; namely, the presence of moisture and grit on the floor where she slipped, and that this defect caused her injuries. The plaintiff argues that the question of notice, which is based on how long the dangerous condition existed, is a question of fact which must be submitted to the jury. In support of her claims that a defective condition existed and that the defendant knew or should have known of it prior to the incident, the plaintiff has also submitted excerpts from her deposition testimony in which she describes the alleged defective area, how she fell and why she fell.
The plaintiff has also submitted a one-page excerpt from a report, prepared for the plaintiff's employer in 2011, relating to the tile floors in the defendant's complex. The excerpt purports to describe the " slip resistance" of the marble floor tile used in the defendant's complex. The report concludes that the tested sample of the marble flooring showed an " adequate slip resistance" when dry, but " significantly worse" slip resistance when wet. The plaintiff argues that the existence of this report confirms the unusually slippery nature of the foyer's tile flooring where the plaintiff fell and sustained her injuries. She further argues that proof of notice in a premises liability case is not necessary where the owner of the premises created the defective or dangerous condition complained of.
Third, the plaintiff argues that the mode of operation rule applies to the present case. Specifically, the plaintiff alleges that the mode of operation rule applies because the defendant knew, or should have known, that the way it conducts its business, specifically, directing people to walk in the area where the plaintiff received her injuries, increased the risk of foreseeable harm to persons such as the plaintiff.
Finally, the plaintiff argues that negligence cases, which are by nature highly fact specific, are particularly ill-suited for decision on motions for summary judgment. In the present case, the plaintiff contends that she has provided sufficient evidence to establish that issues of material fact exist as to the presence of a defective and dangerous condition and whether the defendant had actual and/or constructive notice, which prevents entry of summary judgment in favor of the defendant.
II. ANALYSIS
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 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." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
The purpose of a motion for summary judgment is to dispose of actions lacking a triable issue of material fact. Dorazio v. M B. Foster Electric Co., 157 Conn. 226, 228, 253 A.2d 22 (1968). When deciding a motion for summary judgment, the trial court views the evidence in the light most favorable to the non-moving party. Rodriguez v. Testa, 296 Conn. 1, 6, 993 A.2d 955 (2010). " The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991). " The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing 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. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
" [A] premises liability claim is a negligence cause of action." Diaz v. Manchester Memorial Hospital, 161 Conn.App. 787, 791 n.4, A.3d (2015). " The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006). " In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee. . . . A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them safe. . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Internal quotation marks omitted.) Id., 859. " The relevant principles of premises liability are well established. A business owner owes its invitees a duty to keep its premises in a reasonably safe condition." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
A. Existence of a Dangerous or Defective Condition.
" [B]oth premises liability and products liability claims require that a plaintiff identify the specific defect that caused his or her injuries." Paranto v. Piotrkowski, Superior Court, judicial district of New Haven, Docket No. CV-07-5013627-S (September 22, 2010, Zoarski, J.T.R. ). In the court's opinion, it is an extremely close question as to whether the " moisture and grit, " which the plaintiff testified caused her fall, is a defective or dangerous condition. The plaintiff presents no evidence that the marble floor tile was in disrepair in any way. Additionally, there is no evidence that the floor tiles, where she fell, were uneven, cracked or broken in any way, or different from the rest of the tile anywhere else in the defendant's complex. The plaintiff testified at her deposition that: (1) she did not see anything on the floor before she fell; (2) after she fell, she felt " moisture and grit" on her hands and knees; (3) she did not know how large the area of moisture and grit was that she felt after her fall; and (4) she did not see " a puddle" on the floor area where she fell. When asked about where she believed the moisture came from, she attributed it to " sweating" or condensation from ambient weather conditions.
In this sense, the present case differs from Kubera v. Barnes & Noble Booksellers, Inc., Superior Court, judicial district of Hartford, Docket No. CV-07-5012729-S (March 10, 2009, Elgo, J. ) in which the trial court granted summary judgment to the defendant owner of the store. In Kubera, the plaintiff was unable to identify what caused her to fall in the café area of the defendant's store. Id. The trial court in Kubera agreed with the defendant that even if the plaintiff could prove that the café area was somehow defective, she " has failed to establish that this condition caused her to suffer injury. Since the plaintiff has failed to establish the essential element of causation, the defendant . . . has not set forth a valid premises liability action." Id. In the present case, the plaintiff has produced no evidence of the existence of moisture and grit in the area where she fell, but she does make the allegation that this is the defective condition that caused her fall.
Viewed in the light most favorable to the plaintiff, as the court must when considering a motion for summary judgment, a trier of fact could find that accumulated moisture and grit in the area in question presented a danger to the plaintiff and caused her to fall. Therefore, although the plaintiff presented no evidence of the moisture and grit other than her allegation, the allegation is sufficient to avoid summary judgment on the question of the existence of a defective or dangerous condition that caused her injury.
B. Notice of the Dangerous or Defective Condition.
As previously stated, the plaintiff claims that her injuries and losses were caused by the defendant's negligence and carelessness in, among other things, allowing the marble flooring in the foyer " to become slippery and gritty" precisely in an area where its business invitees should be expected to walk. " [I]n the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it . . . ." (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). Therefore, " [f]or [a] plaintiff to recover for the breach of a duty . . . 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." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 627, 57 A.3d 391 (2012); see also DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 116-17. Furthermore, " [u]nder familiar principles of law, the defendant, as a property owner, is not an insurer of the safety of persons using . . . the premises against the possibility of injury by reason of [a defective condition] thereon. . . . Mere proof of the presence of some [defective condition] does not necessarily show a breach of [a] defendant's duty. . . . [T]he burden rests upon the plaintiff . . . to offer evidence . . . from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice." (Internal quotation marks omitted.) Hellamns v. Yale-New Haven Hospital, Inc., 147 Conn.App. 405, 410-11, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.2d 652 (2014) (appeal withdrawn, May 9, 2014). " A plaintiff can demonstrate that a defendant had actual notice of an unsafe condition by, for example, demonstrating that the condition was created by the defendant's employee . . . or by presenting evidence that an employee, operating within the scope of his authority, observed the dangerous condition and either was charged with maintaining the area or was charged with a duty to report the unsafe condition." (Citation omitted.) Id., 412.
" 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.) Riccio v. Harbour Village Condominium Assn., Inc., supra, 281 Conn. 163. Additionally, " [w]hat 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 omitted.) Id., 163-64. For example, " [t]he nature of the business and the location of the defective condition would be factors in this determination. To a considerable degree each case must be decided on its own circumstances." (Internal quotation marks omitted.) Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.App. 409.
The courts have not set a determinative period of time that constitutes a " reasonable length of time; " rather, there is a wide variation in the case law based on differing factual circumstances. Compare Kirby v. Zlotnick, 160 Conn. 341, 345, 278 A.2d 822 (1971) (where defective porch railing existed for two weeks, defendant visited the apartment weekly and had been on porch one week prior, there was sufficient evidence of constructive notice), with Kurti v. Becker, 54 Conn.App. 335, 339, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999) (existence of ice for three hours was sufficient to find that defendant had constructive notice of defect); see also Considine v. Waterbury, supra, 279 Conn. 872-73 (further comparing case law regarding reasonable length of time).
The courts have held that the " [m]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant's duty. . . . [I]n order to recover under our current law, the plaintiff [is] required to prove that the defendant had . . . actual or constructive notice of the specific defect that caused the plaintiff's injuries." (Citations omitted; internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., supra, 281 Conn. 164. In Riccio, the court found, in reviewing the trial court's granting of a directed verdict for the defendant, that " the burden rests upon the plaintiff, first, to offer evidence sufficiently describing the condition of the [property] so as to afford a reasonable basis in the evidence for the jury to find that a defective condition in fact existed; and, secondly, to offer evidence from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice." (Internal quotation marks omitted.) Id., 164. Additionally, in Riccio, the court found that the plaintiff had not produced any evidence from which a fact finder could find that the black ice which the plaintiff fell on, had been caused by the melting and refreezing of snow and not by some other intervening factor such as an accidental spill. Id., 165. Common knowledge that snow melts or refreezes is insufficient to form an evidentiary basis for constructive notice. Id.
" [O]n a question of notice, the trier's consideration must be confined to the defendant's knowledge and realization of the specific condition causing the injury, and such knowledge and realization cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises." (Internal quotation marks omitted.) James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 182, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011). " 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." (Internal quotation marks omitted.) Id., 179; see also Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).
In James, the court affirmed summary judgment for the defendant in a premises liability case in which the plaintiff fell on a slippery " algae-like" substance on a step while entering a pool. James v. Valley Shore Y.M.C.A.; supra, 125 Conn.App. 175-76. The plaintiff offered no evidence, direct or circumstantial, which addressed the amount of time the substance was on the pool steps relying solely on an affidavit submitted by her husband in which he stated that he felt a slimy, slippery algae-like build-up on the steps after the plaintiff fell. Id., 181-83. Indeed, the plaintiff's testimony revealed that she: (1) observed no substance or residue while entering the pool; (2) did not know whether the step that she slipped on was the same step on which her husband subsequently felt residue; and (3) could not confirm that her fall was not due to a misstep with her right foot. Id., 180-82. " Put simply, the attestation of the plaintiff's husband that he felt a slippery residue in the area where the plaintiff fell pertains to the general conditions of the area, which is insufficient to establish constructive notice on the part of the defendant. . . . Furthermore, there is no evidence before [the court] that the allegedly defective condition existed for such a length of time that the defendant's employees should, in the exercise of due care, have discovered it in time to have remedied it." (Citation omitted.) Id., 182-83. The defendant, in contrast, provided detailed employee affidavits which attested to the fact that the pool was regularly inspected and maintained, and that the growth of algae on the pool steps would have taken an extended period of time. Id., 181.
In the present case, the court agrees with the defendant that the plaintiff has submitted no evidence that the defendant had actual or constructive notice of the moisture and grit that the plaintiff alleges caused her fall. The defendant's interrogatory responses support its claim that no one complained of moisture, grit or any other unusually slippery conditions in the area where the plaintiff fell during the twenty-four months prior to the incident. The plaintiff's deposition testimony supports the defendant's claim that there was nothing wrong with the floor tile other than the open and obvious danger of being slippery when wet. It appears, rather, that the accumulation of moisture and grit was a temporary condition caused by environmental factors that no one, including the plaintiff, in the exercise of due care, would have noticed. The facts of the present case are similar in some respects to those of James where the plaintiff slipped on what she claimed was a slippery substance on the pool stairs. James v. Valley-Shore Y.M.C.A., supra, 125 Conn.App. 176. The court held that some evidence that there was an algae-like substance on the steps by itself was insufficient to prove that defendant had constructive notice of it. Id., 179.
In support of its claim that the defendant did have notice of the dangerous condition that caused the plaintiff to fall on the date in question, the plaintiff relies on the one-page excerpt from the slip resistance report. The report indicates that a sample of tile used in the defendant's business premises has " acceptable slip resistance when clean and dry, " but that its " slip resistance is significantly worse when wet." Furthermore, the report concludes that, after testing the sample provided to the party performing the test, " the [Corporate Center] tile, when wet, has the least slip resistance of any tile previously tested by [the company]."
The plaintiff, however, has submitted no evidence that the defendant, or any of its agents, were aware of this report, which was commissioned by the plaintiff's employer, at any time prior to the incident in question. The court also agrees with the argument of the defendant's counsel that the contents of the report are inadmissible hearsay, and cannot be relied on by the court in determining whether the plaintiff has met her burden. Practice Book § 17-46.
Practice Book § 17-46 provides that: " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto."
The court also respectfully rejects the plaintiff's argument that the court should apply the mode of operation theory to the facts of this case. The plaintiff argues that the mode of operation theory applies where the manner in which the owner conducts its business creates a foreseeable or inherent danger on its business premises; and therefore, it may be presumed that the owner had constructive notice of the dangerous or defective condition. " [T]he mode of operation rule, which allows a business invitee to recover for an injury sustained as a result of a dangerous condition on the premises of a business without a showing that the business had actual or constructive notice of that condition, if the condition was reasonably foreseeable and the business failed to take reasonable measures to discover and remove it." Kelly v. Stop & Shop, Inc., supra, 281 Conn. 775. The plaintiff, however, has presented no evidence from which the court can determine that the alleged accumulation of moisture and grit on the day of the incident was reasonably foreseeable to the defendant, or that the manner in which the defendant operated the foyer was inherently dangerous. The mere fact that the foyer was designed for pedestrian traffic does not, in the court's opinion, establish that an accumulation of moisture and grit in this area, as described by the plaintiff, was reasonably foreseeable to the defendant.
Nevertheless, in the present case, the defendant has not submitted any employee affidavits that verify that the foyer tile was inspected before the accident. In James, the affidavits and other proof established to the court's satisfaction that the alleged slippery condition had not existed for a reasonable length of time sufficient to give the defendant notice, but also that the defendant could not have had notice of the alleged slippery condition. James v. Valley-Shore Y.M.C.A., supra, 125 Conn.App. 181-83. In the present case, in contrast, the evidence before the court does not establish that the defendant could not have known of the existence of the moisture and grit. Rather, there is a complete lack of evidence regarding the length of time the moisture and grit was present on the tile prior to the incident and whether the area was inspected. It is theoretically possible for the plaintiff to prove to the finder of fact at trial that the moisture and grit existed for a reasonable length of time such that the defendant had constructive notice as well as an opportunity to remedy the defect. The purpose of a motion for summary judgment is not to " cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment." Mott v. Wal-Mart Stores East, LP, supra, 139 Conn.App. 631.
The defendant has not met its burden of proving that it lacked actual or constructive notice of the condition which the plaintiff alleges caused her fall. The defendant has not presented sufficient evidence regarding the length of time the moisture and grit existed and whether the area was inspected. As a result, the plaintiff is not required to provide evidentiary support in opposition.
Viewed in the light most favorable to the plaintiff, the evidence indicates that weather conditions may have caused condensation to form in the hallway on the day of the incident which, mixed with ordinary floor grime, caused the plaintiff to fall. The defendant has not established that the plaintiff would be unable at trial to prove that it had either actual or constructive notice of this alleged dangerous condition. As a result, there are genuine issues of material fact. The defendant, therefore, has not established that it would be entitled to a directed verdict at trial.
III. CONCLUSION.
For the reasons set forth above, the defendant's motion for summary judgment is denied.