Opinion
No. CV04 500 00 65 S
June 5, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiff in the above-entitled action has filed this complaint against The Gap, Inc., a retail clothing store. She claims on that October 30, 2002, she was a customer shopping for clothes when she was caused to trip and fall on an accumulation of food which had been allowed to remain on the floor of the premises. Among the allegations of the complaint is a claim that the defendant failed to make reasonable inspection of the area of the floor in question.
The only evidence submitted concerning the circumstances of the fall was through the deposition of the plaintiff, herself. She testified she was with her son browsing for clothes when "all of a sudden I was on the ground." When asked specifically what happened, she indicated "all I remember is I was on the ground and the lady came over." At first she did not know how she ended up on the ground but then she saw something red on the ground and it was a tomato and that is all she remembered. She did not remember how she fell, but testified "usually when someone falls you're either dizzy, you have syncope or you fall on something and when I got up off the floor . . . looked on the bottom of my shoe so it spread and that's why the girl came to clean the tomato." She testified that the tomato was on the bottom of her foot and it spread onto the floor. She didn't remember how long she was in the store, she had no idea how long the tomato was on the floor or how it got there. She did not know how big the slice of tomato was, nor could she describe it.
The manager of the store testified that the 10-12 employees constantly moved about the store inspecting the premises including the floor. She testified that if she were standing directly over a red piece of a tomato, she would probably be able to see it. The defendant's have moved for summary judgment on the basis that they did not have actual or constructive notice of the alleged hazardous condition. See. e.g., Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 521, 615 A.2d 1087 (1992); Kapilotis v. Shoprite Supermarket, Inc., 14 Conn.App. 250, 251, 540 A.2d 376 (1988); Fuller v. First Nat'l Supermarkets, Inc., 38 Conn.App. 299, 301, 661 A.D.2d 110 (1995); Tuite v. Stop Shop Cos., 45 Conn.App. 305, 308, 696 A.2d 363 (1997).
With respect to the motion for summary judgment "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof 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 deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which under applicable principles of substance of law entitled him to a judgment as a matter of law . . . and the party opposing such a motion must also provide evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . is a fact which will make a difference in the result of the case." Hurley v. Heart Physicians, P.C., 278 Conn. 305 (2006).
The defendant has claimed there is an issue of fact based on two superior court cases: Halsted v. B.J.'s Wholesale, 2005 WL 1757199 *3 (Trombley, J.) and Rush v. Sactacroce, 2001 WL 100296 (Swords, J.). Although the manager in the present case testified that they constantly inspect the floor of the premises and did not notice the alleged hazardous condition. The claim is, apparently, that constructive notice can be inferred by a trier of fact based on the defendant's constant responsibility to inspect the premises.
The defendant overlooked the pre-requisite requirement that there must be evidence that the defect existed for any period of time so as to enable the court to exercise its function as fact finder. Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 615 A.2d 1087 (1992). "An inference must have some definite basis in the facts and the conclusions based it must not be the result of speculation and conjecture." Palmieri v. Massaro, 146 Conn. 705, 708, 155 A.2d 750 (1959).
In Halsted, the evidence indicated the plaintiff slipped on a patch of ice in the defendant's parking lot. There would be a reasonable inference that the liquid would have taken a period of time to freeze before the plaintiff fell. In Rush, the opinion is an articulation of a prior denial of a motion for summary judgment. There is a reference to an unsafe condition, but no reference to the evidence submitted concerning the condition.
It is the opinion of this court that a constant inspection of a premises which indicated no observation of a defect would not obviate the necessity of establishing some evidence that the defect itself had existed for an appropriate period of time before the accident and cannot, in of itself, be used to establish a defect by a failure to be seen.
In Gulycz v. Stop Shop Cos., 29 Conn.App. 519, the evidence indicated that the plaintiff injured himself by striking a protruding hinge and screw at the end of checkout isle in the defendant's store in New Britain. The court observed that the plaintiff testified after the accident he asked the head cashier, the isle supervisor and the stock clerk if they had seen the defect, "there was no evidence, however, whether they saw it before or after the injury. No witness was called to establish whether any employee had observed the defect at the time prior to the plaintiff's injury. If there had been some evidence that the defect existed prior to the injury, the trier of fact would have basis to determine whether the length of time was sufficient to permit a reasonable inference of constructive notice . . ." supra, Gulycz v. Stop Shop Cos., 29 Conn.App. 523.
In Morris v. King Cole Stores, Inc., at 132 Conn. 489 (1946) a plaintiff who claimed he had slipped on a slippery condition located at the entranceway of the defendant's store. With respect to notice, the defendants claimed "a few minutes previously an employee had passed over the very spot and could reasonably be expected to see the debris in time to brush it aside. The evidence is that at the very moment the employee came out the plaintiff started in the store. There is no testimony that the employee saw anything on the floor, and no reasonable inference could be drawn that he should have seen the defect in time to remedy it." (Emphasis added). The court went on to indicate "Evidence which goes no further than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant." Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 494. In Columbo v. Stop Shop Supermarket Co., 67 Conn.App. 62 (2001) the Appellate Court sustained a directed verdict under similar circumstances. The plaintiff claimed she slipped and fell on some milk at a Stop Shop and after she got up she noticed that the milk and her clothing and her hands were dirty. Defendant moved for a directed verdict indicating there was a question of actual constructive notice and whether or not the store had a reasonable opportunity to take some kind of curative step but as a preliminary matter it had to ascertain whether the defendant in the exercise of due care inspection should have discovered the milk on the floor. The court concluded that no reasonable juror could find that the defendant had notice of this condition or that it existed for the length of time that reasonable inspection would have discovered it. "We have no evidence as to how it got there and no evidence as to when it got there."
The Appellate Court concluded "the law concerning notice in this type of case is clear. The plaintiff bore the burden of offering some evidence either direct or circumstantial from which the jury can infer that the defect she allegedly encountered existed for a length of time sufficient to put the defendant on actual or constructive notice of its existence . . . In the absence of such evidence, we cannot permit a jury to reach such a conclusion on the basis of either speculation or conjecture . . . Viewing the facts presented in the light most favorable to the plaintiff, we conclude that as a matter of law the jury could not have reasonably concluded that the defendant breached a duty to the plaintiff under the circumstances of this case and therefore the court correctly directed a verdict in favor of the defendant." Supra, Columbo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 64, 65 (2001).
The Motion for Summary Judgment is granted.