Opinion
No. CV 04 0569589
June 2, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT — INJURY FROM MERCHANDISE DISPLAY
In her complaint plaintiff Raven Dimario alleges that while she was shopping inside the B.J.'s Wholesale Club in Watertown, Connecticut, she was injured by a roll of carpeting which fell on her from a carpet display. The plaintiff alleges that her injury was the result of the defendant's negligence in that the defendant, inter alia 1) failed to make a proper and reasonable inspection of its premises; and 2) failed to secure the locking mechanism on the carpet display rack.
Defendant B.J.'s Wholesale Club has moved for summary judgment. The defendant argues that the plaintiff cannot establish that it had actual or constructive notice of the alleged defective condition, and therefore, judgment should enter in its favor. "Typically, [f]or the plaintiff to recover for the breach of a duty owed to her as a business invitee, she ha[s] to allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her [injury] . . . Either type of notice 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 . . . If the plaintiff, however, alleges an affirmative act of negligence, i.e., that the defendant's conduct created the unsafe condition, proof of notice is not necessary." (Internal quotation marks omitted.) Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 474, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002).
The plaintiff also cites Meek for the proposition that "[w]hether a storekeeper has displayed merchandise in an unsafe manner such that injury to customers is foreseeable is for the fact finder to determine and is to be answered by considering all of the surrounding circumstances. (Emphasis added]" Id., 476.
Further buttressing her argument against summary judgment, the plaintiff quotes from another appellate court case the proposition that an ". . . unsafe condition need not arise out of a defect in the premises themselves but may consist of a defect in the use of the building, such as a dangerous display of merchandise on the premises." Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 80 Conn.App. 364, 377, 835 A.2d 91 (2003), cert. granted, 268 Conn. 912, 845 A.2d 414 (2004).
As stated earlier, the plaintiff alleges in her complaint, inter alia, that the defendant failed to make a proper inspection of and to secure the display.
"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.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). The defendant has submitted an affidavit certifying that it had no notice or forewarning of any danger in the carpet display. The defendant has also submitted a certified excerpt of a deposition transcript demonstrating that the plaintiff had no knowledge of any defect in the display or the length of time the rack may have been in a dangerous condition. The defendant has not, however, submitted evidence showing the absence of a genuine issue as to the plaintiff's allegation that the defendant failed to properly inspect the condition of the premises at issue.
The following quotation from 62 Am Jur.2d may be instructive:
Storekeepers may have a special obligation in regard to the storing and stacking of large, cumbersome, or unstable items which are likely to fall and injure customers. Thus, if a carpet or linoleum roll falls in such a manner as to injure a customer, liability on the part of the store owner will generally be found on the ground that the store owner or an employee was the last to handle the goods and left them in a precarious position.
Sec. 596 Large or unstable items: paneling, carpeting, or the like.
See also Burke v. Jordan Marsh Co., 313 Mass 119, 46 NE.2d 519. Footnote 28 to 62 Am.Jur.2d include cases that address the doctrine of res ipsa loquitur in these situations. See, for example. Cortez Roofing, Inc. v. Barolo, (Fla.App D2) 323 So.2d 45 (Rev. on other grounds). It is a doctrine recognized in Connecticut jurisprudence. Malvicini v. Stratford Motel Hotel, 206 Conn. 439 (1988).
The court finds that there is a genuine issue of material fact as to whether defendant B.J.'s Wholesale Club displayed the carpeting in this case ". . . in an unsafe manner such that injury to the plaintiff was foreseeable . . . considering all of the surrounding circumstances." Meek, supra, 476.
Accordingly, the defendant's Motion for Summary Judgment is denied.
Clarance J. Jones, Judge