Opinion
No. X07 CV 05 4025110 S
July 2, 2007
MEMORANDUM OF DECISION
I
On March 9, 2002, the plaintiff, Michelle DiPietro, was playing soccer at the Farmington Indoor Sports Arena (arena) at 21 Hyde Road in Farmington when she fell to the ground and sprained her right ankle. She maintains that this injury resulted in "reflex sympathetic dystrophy" and problems with allodynia, hyperalgesia and dysesthesias in the lower right leg. This has allegedly led to "difficulty walking, and at times, an inability to walk, necessitating the use of crutches, a walker or a wheelchair."
On January 14, 2005, she filed the instant one-count complaint through her mother, Karen DiPietro, as next friend, alleging that the fall was caused by the negligence of the defendant, Farmington Sports Arena, LLC (FSA). The plaintiff asserts, among other things, that FSA failed to provide a safe playing surface at the arena.
The plaintiff originally sued DiTommaso Associates, LLC, on March 8, 2004 claiming that it was in control of the arena. See DiPietro v. DiTommaso Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV 040832686. DiTommaso Associates, LLC, filed a motion for summary judgment on the grounds that the wrong defendant had been sued. The court, Lavine, J., granted the motion, without objection, on November 22, 2004.
The plaintiff filed the instant lawsuit on January 14, 2005 pursuant to General Statutes § 52-593, which provides that "[w]hen a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action."
On November 23, 2005, also pursuant to § 52-593, the plaintiff brought a third action. See DiPietro v. DTG, LLC, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 05 5005805. In that action, the plaintiff is suing other entities, DTG, LLC (DTG) and Farmington Sports, Inc., both private corporations, and Paul DiTommaso, all with an address at 21 Hyde Road, Farmington. The plaintiff essentially alleges the same facts as in the present case and, further, that DiTommaso individually, owned, directed, or controlled the above corporations. Additionally, the plaintiff named DiTommaso Associates, LLC as a defendant and alleges that it is a successor corporation to the above corporations and thus liable for the obligations of those corporations. Discovery has demonstrated that DTG owned the subject arena, which is no longer in operation. A new facility at 11 Executive Drive in Farmington is owned by DiTommaso Associates, LLC and operated by FSA. On March 2, 2007, the plaintiff voluntarily withdrew her case against Farmington Sports, Inc. The remaining defendants have filed motions for summary judgment in that action making some of the same arguments as those made by FSA in the present case.
In her complaint, the plaintiff alleges that ESA is liable for her injuries in that it: failed to provide a safe playing surface at the arena; failed to warn participants, parents and league officials that the playing surface was not safe; failed to provide a playing surface that complied with industry standards for indoor surfaces; failed to warn participants, parents and league officials that the playing surface was not in compliance with industry standards for indoor surfaces; improperly renovated an old warehouse into an indoor soccer arena; advertised the arena as a "state-of-the-art" facility when it knew, or should have known, that it was not; sold footwear that was inconsistent with the type of playing surface that existed at the time of this incident; failed to protect adequately participants in the league; and failed to act reasonably given the circumstances then and there existing.
On May 4, 2006, FSA filed a motion for summary judgment arguing, inter alia, that there is no evidence that a defect existed in the arena's playing surface; or, if a defect existed, that there is no evidence that the defect caused the plaintiff's injuries; and, finally, that it did not have actual or constructive notice of any specific defect. In the plaintiff's memorandum of law in opposition to the motion for summary judgment, filed May 21, 2007, she argues that there are genuine issues of material fact based upon the affidavit of her liability expert, Benno Nigg, a professor of biomechanics at the University of Calgary. Specifically, she asserts that Nigg's affidavit establishes that the playing surface was unreasonably dangerous and that it was a substantial factor in causing her injuries. The defendant argues, however, that Nigg's affidavit is conclusory and contradictory to his deposition testimony.
The plaintiff objected to the motion for summary judgment on August 29, 2006. In her objection, she argued that she would prove all of the elements of negligence with expert testimony but that the deadline for disclosing expert witnesses was not until November 1, 2006. Her expert was disclosed and deposed on February 13, 2007.
FSA filed a "supplemental statement of facts" in support of its motion for summary judgment on April 3, 2007 to which copies of portions of Nigg's deposition, inter alia, are attached.
II CT Page 13556
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 . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts . . .
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact . . . Summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.
(Citations omitted; internal quotation marks omitted.) Somers Mill Associates, Inc. v. Fuss O'Neill, Inc., Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 00 0503944 (March 7, 2002, Aurigemma, J.).
A.
During oral argument on this motion and in her memorandum in opposition to the motion for summary judgment, the plaintiff is very clear that "the claim against Farmington Sports Arena is a case of simple negligence. In fact, the only theory of recovery against FSA is that of negligence." "In a negligence action . . . expert testimony will be required [i]f the determination of the standard of care requires knowledge that is beyond the experience of a normal fact finder . . . The requirement of expert testimony . . . serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard . . . Expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." (Citation omitted; internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 137, 907 A.2d 1220 (2006). "[T]he court's determination of whether expert testimony [is] needed to support the plaintiff's claim of negligence against the defendant [is] a legal determination . . ." Id., 136.
It is important to note that the plaintiff has not alleged a cause of action for products liability. See General Statutes §§ 52-572m through 52-572q.
In LePage v. Horne, 262 Conn. 116, 134-35, 809 A.2d 505 (2002), the court set aside a plaintiff's verdict because it determined that the plaintiff had failed to introduce expert testimony to establish the standard of care for attending to a sleeping infant so as to prevent sudden infant death syndrome. It held that "expert testimony was required to assist the jury to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard." Id., 132; see also Santopietro v. New Haven, 239 Conn. 207, 227, 682 A.2d 106 (1996) ("umpire possesses knowledge of the standard of care to which an umpire reasonably may be held, and of what constitutes a violation of that standard, that is beyond the experience and ken of the ordinary fact finder").
This same principal was discussed in O'Brien v. Ski Sundown, Superior Court, judicial district of Litchfield, Docket No. CV 000083444 (February 7, 2003, Frazzini, J.) (34 Conn. L. Rptr. 222). The court held that "[t]he factual question of whether the ski lift at defendant's establishment was safe is not a matter within the ken of the ordinary juror. Such a question involves matters of design, engineering, mechanics, and perhaps even compliance with industry standards, such as those promulgated by the American National Standards Institute (ANSI) and adopted by Connecticut and many other states, all questions requiring expert knowledge." Id., 223; see also MacDonald v. Ski Sundown, Inc., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0083292 (March 31, 2005, Sferrazza, J.); Somers Mill Associates, Inc. v. Fuss O'Neill, Inc., supra, Superior Court, Docket No. X03 CV 00 0503944.
In the present case, the plaintiff's counsel, during oral argument on this motion on May 23, 2007, asserted that the carpet was not defective in the traditional sense, that is, as a result of bunched-up material or a hole or tear or rip. Instead, the plaintiff maintains that it was the very use of this particular type of carpet for a playing surface that constitutes the defect. There is, however, nothing about a non-defective, carpeted floor that constitutes a dangerous condition per se. See Byrne v. Madison Square Garden Corp., United States District Court, Docket No. 96 CV 4108, 1998 U.S. Dist. LEXIS 13935 (S.D.N.Y. September 4, 1998) (citing cases that slipperiness of surfaces alone does not form the basis for negligence and finding that plaintiff had proffered no evidence that non-defective carpet is inherently dangerous when used for dancing), aff'd, 189 F.3d 460 (2d Cir. 1999).
The question of whether the carpeted floor was safe for indoor soccer involves industry standards, engineering and mechanics. Nigg's disclosure, for example, states "that the flooring surface provided by the defendants was unreasonably dangerous and unfit for use in an indoor soccer arena because (a) it produced excessive translational and rotational traction values which typically result in higher injury frequencies, (b) because it showed significantly higher loading than synthetic sports surfaces found more frequently in sports arenas, and (c) because it created excessive forces on the foot which can lead to ankle injuries such as the one sustained by the plaintiff, all of which was a substantial factor in causing Michelle's injuries." Additionally, he concludes in his report submitted by the plaintiff "[t]he results from the `forefoot rotation test' (material test) showed significantly higher loading for the carpet surface condition (compared to selected synthetic Pulsastic surface)" and "[t]he results from the midfoot rotation tests and the midfoot translation tests showed that the translational and rotational forces acting on the athlete's ankle joint complex are excessive for the carpet condition." Consequently, this court finds that the issue of whether the very use of this particular carpet for a playing surface for indoor soccer constitutes a dangerous condition requires expert testimony because it is "beyond the field of the ordinary knowledge and experience of judges or jurors." See Vanliner Ins. Co. v. Fay, supra, 98 Conn.App. 137.
B
Assuming arguendo that Nigg is qualified to testify in this case, FSA argues that the plaintiff, through Nigg, cannot prove other elements required in an action for negligence. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858-59, 905 A.2d 70 (2006). "We sometimes refer to the scope of that duty as the requisite standard of care." (Internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002).
At the hearing on May 22, 2007, counsel stressed that they intended to file motions pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 593 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998), to exclude Nigg's testimony.
Generally, "[a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably 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.) Considine v. Waterbury, supra, 279 Conn. 859. "Typically, [for the plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, 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 quotations omitted.) Baptiste v. Better Val-U Supermarket, Inc., supra, 262 Conn. 140.
In the present case, only the defendants have provided evidence of the standard of care and the lack of notice about the alleged, dangerous defect. For example, according to DiTommaso's deposition, the playing surface was a relatively new commercial-grade carpet installed over concrete and was chosen based upon his twenty years of experience as a player, owner and coach. Other than the plaintiff's incident, he attested that he was unaware of any other complaints about the carpet or any industry standard. Both the plaintiff and her father testified in their depositions, that they did not observe, and she did not complain about, any defects on the playing surface at the time of her injury.
Additionally, her coach, Mike Brown, who witnessed the fall, testified that he recalled no complaints about the surface and observed no defects. He further attested that the surface was similar to other playing surfaces and that he did not feel that it was unsafe. He testified that he continued to coach his team on that surface for the rest of the season.
Moreover, Alistar Bell, the president of the Farmington Soccer Club in charge of the scheduling and management of soccer at the arena, testified that the carpet was similar to that in other indoor arenas, that it was well maintained and that there was no damage to the surface at the time the plaintiff fell. He attested that he knew of no complaints either before or after the fall. Furthermore, Kathleen Zolad, the president of the Connecticut Junior Soccer Association, which sanctions indoor facilities in Connecticut, testified that she inspected the surface as part of the arena's site inspection in 2001 and that she found the playing surface "fine."
In response, the plaintiff argues that the affidavit of her only liability expert, Nigg, establishes the existence of genuine issues of material fact. In his affidavit, Nigg states that "[t]he flooring surface provided by the defendants was unreasonably dangerous"; yet, he testifies in his deposition that he is only able to testify as to causation. Indeed, he attests that he has no position on standard of care or breach of duty. Specifically, in addition to his other testimony, on pages 165 and 166 of his deposition, he states:
The following are excerpts from his deposition:
Pages 88-89:
Q. All right. Did you review any government or industry standards as part of your work in this case?
A. No.
Q. Do you know if there are any government or industry standards that would pertain to the opinions that you have rendered in this case?
A. No.
Q. No, you do not know, or no, there are none?
A. Both.
Q. Did you contact any groups or organizations that are involved in the promotion of indoor soccer as part of your work in this case?
A. No.
Q. Have you ever worked with anyone at the United States Indoor Soccer Association?
A. No.
Q. Had you ever heard of the USISA before today?
A. I probably have, but I couldn't tell you what the abbreviation means.
Q. As part of your work, did you attempt to evaluate what the local standards were in 2002 for playing surfaces at indoor soccer arenas?
A. Local?
Q. Local being Connecticut.
A. No.
Q. If we had eight or ten facilities here in Connecticut that were up and running in 2002, do you have any idea —
A. It was not related to the question that I was asked to study.
Pages 95-96:
Q. An any point in time, have you ever been the manager or administrator of a youth indoor soccer program?
A. No.
Q. At any point in your past, have you been the manager of an indoor soccer facility?
A. No.
Q. Over the years, have you ever come across any indoor soccer programs that utilize a hardwood floor such as a basketball court?
A. No. Which doesn't mean they don't exist. I just don't know.
Pages 97-98:
Q. All right. But as far as actual testimony in court, you can't recall a time when you went into court and testified as an expert in a case involving personal injuries on an indoor playing surface?
A. That's correct.
Q. Have you ever testified in court or at deposition in a personal injury case as an expert regarding the design of an indoor soccer facility?
A. No.
Q. I think you said before that you were not aware of any government or industry standards that would apply to the playing surface in this case, correct?
A. Correct.
Page 100:
Q. Have you ever been on the United States Indoor Soccer Association website for any reason?
A. No.
Q. So is it fair to say then that your opinions would not take into consideration the flooring surfaces that are suggested by the United States Indoor Soccer Association?
A. In my opinion with respect to my report?
Q. Yes.
A. Yes.
Q. Just to clarify something that I think you said before, you are not going to provide any opinions regarding the standard of care for indoor soccer facilities in the State of Connecticut; is that correct?
A. Correct.
Q. And I understand that you were not asked to specifically address that issue.
A. Correct.
Q. And based upon the things I've heard you say today, is it fair to say you would not be qualified at this point to render an opinion on that issue?
A. Correct. I would have to do some research, but at this moment I would not.
Q. You would not be qualified.
A. Correct.
Additionally, there is no indication that Nigg could testify that FSA knew or should have known that a dangerous condition existed. In fact, no evidence suggests that FSA knew or should have known that the carpeted playing service constituted a defect. As stated above, a non-defective carpeted floor does not inherently constitute a dangerous condition. See Byrne v. Madison Square Garden Corp., supra, United States District Court, Docket No. 96 CV 4108.
This court recognizes that, in certain cases of negligence where the issue is breach of the standard of care, notice is not required. "If the plaintiff . . . alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof of notice is not necessary . . . That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof." (Citations omitted; internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007). In this case, of course, that issue is not reached as the plaintiff has failed to set forth the applicable standard of care. As discussed above, depositions submitted by FSA show, among other things, that other indoor soccer arenas had the same or similar carpeted playing surfaces; the plaintiff failed to introduce any evidence on the standard of care.
Nevertheless, even if the plaintiff could prove the applicable standard of care and this were a case where notice is not required, the risk of the alleged affirmative act would need to be foreseeable to constitute a breach of the standard of care. See, e.g., Kelly v. Stop Shop, Inc., supra, 281 Conn. 793 ("[T]he area around the salad bar was `precarious' because customers regularly caused items from the salad bar to fall to the floor below. Indeed, because the defendant knew of the dangers associated with maintaining a self-service salad bar, the defendant had a policy of stationing an attendant at the salad bar for the purpose of keeping the area clean and safe."); Meek v. Wal-Mart Stores, 72 Conn.App. 467, 479, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002) ("Given the tables' large dimensions and substantial weight, it was foreseeable that placing them on end on a high shelf, with their centers of gravity significantly above the top of a much shorter fence, could lead to a dangerous situation after minimal inspection or slight movement caused by a customer. Specifically, although the defendants stocked the tables leaning slightly back, they could have foreseen that a customer inspecting them would move them slightly forward or remove and return them to the shelf in a totally upright position. Further, there was ample evidence introduced at trial showing that although the defendants were fully aware that customers rearranged merchandise with predictable regularity, they chose to display the tables as they did because of concerns about sales."). In the present case, not even a scintilla of evidence suggests foreseeability.
Without in any way commenting on the nature of the plaintiff's injuries, and, for these purposes, assuming Nigg's tests and conclusions are valid and persuasive, the plaintiff has not presented any evidence demonstrating the existence of a material fact in connection with the scope or breach of its duty: no evidence of a standard of care and no evidence of notice of the alleged defect in the carpet. Summary judgment is appropriate when it is evident, as here, that the plaintiff will be unable to produce an expert witness at trial to testify regarding the applicable standard of care. See Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn.App. 750, 766, 785 A.2d 588 (2001); see also Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn.App. 368, 371, 889 A.2d 829 (2006) ("[t]he test for admissibility of the opinion of an expert witness is whether the expert knows the applicable standard of care and can evaluate the defendant's conduct, given that standard"). Because the plaintiff's only liability expert will not be able to testify about the standard of care or about the issue of notice, summary judgment is appropriate.
Furthermore, as demonstrated in his deposition testimony, Nigg also lacks personal knowledge of the essential facts in this case. He admitted that he never spoke with the plaintiff, her father, her mother, or her coach. He further testified that he did not have the plaintiff's deposition or medical records at the time he issued his report, had no information related to environmental conditions, facility age or use, injury frequencies and fit of shoes, her soccer position, place of injury or what she was doing at the time of injury to gain a complete understanding of the biomechanics of the accident. Thus, the court finds that Nigg does not have the personal knowledge about this case that would allow him to render an opinion with substantial value. See Practice Book § 17-46; see also Sears v. Curtis, 147 Conn. 311, 314-15, 160 A.2d 742 (1960).
Accordingly, because there is no genuine issue of material fact that there is no evidence to establish the standard of care or notice of the dangerous condition alleged in this case, FSA's motion for summary judgment is hereby granted.
For the reasons the claim fails against FSA, the same holds true for the negligence counts against DTG and DiTommaso in the companion file. As such, the piercing claims against DiTommaso individually and successor liability claims against DiTommaso Associates must also fail. Accordingly, the defendants' summary judgment motions in DiPietro v. DTG, LLC, supra, Superior Court, Docket No. X07 CV 05 5005805, which were heard by this court on April 9, 2007, May 22, 2007 and May 29, 2007, are also granted.