Opinion
CASE NO. 3:22-cv-216(RAR)
2024-01-24
Mary Ann DUDZINSKI, Plaintiff, v. KOHL'S, INC., Defendant.
Alexander T. Taubes, New Haven, CT, Prerna Rao, Omnia Law, LLC, Trumbull, CT, for Plaintiff. Barry P. Beletsky, Riccio & Beletsky, Branford, CT, for Defendant.
Alexander T. Taubes, New Haven, CT, Prerna Rao, Omnia Law, LLC, Trumbull, CT, for Plaintiff.
Barry P. Beletsky, Riccio & Beletsky, Branford, CT, for Defendant.
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Robert A. Richardson, United States Magistrate Judge
Mary Ann Dudzinski ("plaintiff") initially filed this action in Connecticut Superior Court. (Dkt. #1 at 6). The complaint alleges that defendant's negligence in the operation of its store resulted in injury to plaintiff. (Dkt. #1). On February 7, 2022, defendant removed the case to the United States District Court. Id. After the parties consented to trial before a magistrate judge, the case was transferred to the undersigned. (Dkts. #19, 20). On October 27, 2023, defendant filed its motion for summary judgment. (Dkt. #31). Plaintiff filed her objection on November 17, 2023. (Dkt. #32). For the reasons set forth below, defendant's motion for summary judgment is GRANTED.
I. Facts
On January 16, 2020, plaintiff entered defendant Kohl's store in Orange, Connecticut. (Dkt. #31-2 at 1). While shopping at defendant's store, plaintiff saw a kitchen spatula hanging off a hook on the wall. Id. at 2. Plaintiff could not reach the spatula, so she looked for a store associate to help her get the spatula from the wall. (Dkt. #32 at 1). Failing to find an associate, plaintiff returned to the spatula and jumped up to try and reach it. Id. Upon landing, plaintiff fell and sustained injuries. Id.
In her opposition to defendant's motion for summary judgment, plaintiff states that she did not actually jump, but simply "raise[d] herself a few inches, such as raising onto the balls of her feet." (Dkt. #32 at 2). However, at another point in the same document, plaintiff states that she "attempted to jump to reach and dislodge [the spatula.]" (Dkt. #32 at 1). Plaintiff has testified under oath that her action was a "hop" or a "jump." (Dkt. #31-2 at 19). The only support for plaintiff's new assertion that she did not actually jump is the deposition testimony of defendant's expert Jeffrey Cissell. (Dkt. #32 at 2). However, the cited pages of Mr. Cissell's deposition do not establish that plaintiff did not jump. (Dkt. #32-4 at 38). Mr. Cissell simply testified that if plaintiff said she was "six inches off the floor and didn't jump, then she has to be wearing platform shoes." Id. However, plaintiff testified both that she jumped and that she was wearing rubber-soled shoes with no heel. (Dkt. #31-2 at 12, 19). The Court concludes that there is no genuine dispute on this issue, where plaintiff has specifically stated on several occasions that she jumped for the spatula. Additionally, whether plaintiff jumped or rose onto her toes is immaterial to the Court's determination that summary judgment is appropriate.
II. Legal Standard
A. Summary judgment
Rule 56(a) of the Federal Rules of Civil Procedure allows a party to move for summary judgment on any or all claims, which the court must grant "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012) (quoting
Anderson, 477 U.S. at 249, 106 S.Ct. 2505).
The burden is on the moving party to show that it is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court must "construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in [that party's] favor." Gary Friedrich Enters., LLC v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013).
If the party moving for summary judgment satisfies its burden, then the party opposing summary judgment "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015). "The party opposing summary judgment must do more than vaguely assert the existence of some unspecified disputed material facts or 'rely on conclusory allegations or unsubstantiated speculation.'" Gary v. Nordstrom, 3:18cv1402 (KAD), 2020 WL 5709632, at *1 (Sept. 24, 2020) (quoting Robinson, 781 F.3d at 44). Allegations that are "conclusory and unsupported by evidence of any weight" are insufficient for the non-moving party to withstand a motion for summary judgment. Smith v. Am. Express Co., 853 F.2d 151, 155 (2d Cir. 1988).
"If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Security Insurance Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996), cert denied 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996)).
B. Premises liability
The essential elements of a cause of action in negligence are well established. Considine v. City of Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006) (quoting Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 556, 707 A.2d 15, 24 (1998)). Those elements are: "duty; breach of that duty; causation; and actual injury." Id. The existence of a duty of care is an essential element of negligence. Sturm v. Harb Dev., LLC, 298 Conn. 124, 139, 2 A.3d 859, 870 (2010). To assess the duty that a defendant owes to a plaintiff, it is "first necessary to establish the point from which that duty flows." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63, 67 (2002). A business owner owes its invitees 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). Additionally, "the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012) (quoting Considine, 279 Conn. at 859, 905 A.2d 70) (internal quotation marks omitted). To recover for a breach of the duty owed to a plaintiff as a business invitee, the plaintiff must "allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition" which caused the injury, or "constructive notice of [the unsafe condition]." Gachinsky v. Wal-Mart Stores, Inc., No. KNLCV186032751S, 2019 WL 1938598, at *2 (Conn. Super. Ct. Apr. 5, 2019) (quoting Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249, 255 (2007)). That 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." Id.
However, there are two main exceptions to the notice requirement of traditional
premises liability. The first is the "affirmative act rule." See Smith v. Whole Foods Mkt. Grp., Inc., No. 3:14-CV-01954 (JAM), 2016 WL 4007544, at *2 (D. Conn. July 26, 2016). The second, on which plaintiff relies in this action, is the "mode-of-operation" rule. The "mode-of-operation rule relieves a plaintiff in a premises liability suit from the usual requirement of proving a defendant's actual or constructive notice of a dangerous condition if she 'can show that the business engaged in a deliberate method of operation which would make the frequent occurrence of similar conditions reasonably foreseeable.'" Id. at *1 (quoting Konesky v. Post Road Entertainment, 144 Conn. App. 128, 136, 72 A.3d 1152 (2013)).
III. Discussion
Defendant argues that it is entitled to summary judgment for two reasons. First, defendant asserts that the placement of the spatula on the wall did not constitute a defective condition. In support of this argument, defendant states that there "are absolutely no regulations, standards or codes ... violated by the placement of the spatula." (Dkt. #31-2 at 5). Next, defendant argues that even if the placement of the spatula does constitute a dangerous condition, the "placement was open and obvious to the plaintiff, she was well aware of it, and decided to jump and try and grab" the spatula. Id. Accordingly, defendant argues that it would be under no obligation to warn against the allegedly dangerous condition. The Court will address each argument in turn.
A. Plaintiff has raised a genuine question of material fact regarding whether the placement of the spatula on the gadget wall constituted an unreasonably dangerous condition or defect.
Defendant argues that because there are no regulations, standards, or codes that were violated in the placement of the spatula, summary judgment is appropriate. However, violation of a regulation, standard, or code is not required for a finding that the placement of the spatula was unreasonably dangerous or defective. For example, in Mahoney v. Mill Pond Farm, Inc., No. FBTCV136034223S, 2015 WL 4173133 (Conn. Super. Ct. June 5, 2015), a premises liability action, the defendant argued that it was entitled to summary judgment because the premises was constructed in accordance with state and local building codes and zoning regulations. The plaintiff in Mahoney countered that "it is not necessary to have a violation of any building code in order to establish negligence." Id. at *1. The court agreed, finding "[t]he fact that a defendant[ ] was in compliance with codes, statutes and/or regulations is evidence of the standard of care for the jury to consider, but would not necessarily prevent a jury from finding negligence by the defendant." Id. at *3. "Compliance with the relevant codes and regulations is just one of the facts and pieces of evidence for the trier of fact to consider when determining the standard of care in a negligence action[ ] such as this." Id. See also Allison v. Manetta, 284 Conn. 389, 403, 933 A.2d 1197, 1206 (2007) ("[w]hile violation of a statute is negligence, compliance with a statute is not necessarily due care") (internal quotation marks and citation omitted).
As another example, in Kimmey v. Costco Wholesale Corporation, No. 3:20CV1572 (JCH), 2022 WL 1443973 (D. Conn. May 6, 2022), the Honorable Janet C. Hall found that a genuine issue of material fact existed regarding whether rainwater on the ground of a store constituted an unreasonably dangerous condition or defect. The defendant in its motion for summary judgment argued that the plaintiff
was required to offer expert testimony to prove that the condition was dangerous. Id. at *3. Judge Hall disagreed, stating that "a reasonable juror could determine, without expert guidance and as a matter of common knowledge, that a wet concrete floor was not reasonably safe and constituted a defect." Id. (internal quotation marks and citations omitted).
Here, the Court declines to hold as a matter of law that displaying merchandise at any particular height above the ground is not a dangerous condition. (Dkt. #31-2 at 33) (defendant's expert report noting that the spatula's height was estimated at 84" above the ground). A finder of fact would be entitled to apply common sense and the evidence presented at trial to determine whether the placement of the spatula on the wall was unreasonably dangerous, notwithstanding the fact that the placement was not prohibited by any codes, regulations, or other standards. Therefore, summary judgment is not appropriate on this basis.
B. Assuming that the placement of the spatula constituted an unreasonably dangerous condition or defect, that defect was open and obvious to the plaintiff.
Defendant next argues that, even if a dangerous condition or defect existed, that condition was open and obvious to the plaintiff. Therefore, defendant argues that it was under no duty to warn plaintiff of the allegedly dangerous spatula placement. (Dkt. #31-2 at 5). Plaintiff's response to defendant's summary judgment motion does not offer evidence to rebut this argument. (Dkt. #32).
According to Connecticut law, where an unreasonably dangerous condition or defect exists, and that dangerous condition is open and obvious to the plaintiff, the defendant does not retain the duty to warn of the danger. Welsh v. Stop & Shop Supermarket Co., No. FBTCV196090354S, 2021 WL 5277566, at *3 (Conn. Super. Ct. Oct. 18, 2021). In cases where there is "room for reasonable disagreement as to whether the plaintiff was or should have been aware of a defective condition, "such a determination should be left to the jury." Id. at *1 (denying summary judgment where plaintiff testified that she had not seen the stock cart which she tripped over).
Alternatively, where the record reflects that a hazard is open and obvious to the plaintiff, and the plaintiff knowingly and unnecessarily engages with the hazard, the defendant's duty to warn is relieved. This is because "a store owner is not an insurer of its customers' safety." Meek v. WalMart Stores, Inc., 72 Conn. App. 467, 478, 806 A.2d 546 (2002) (internal quotation marks omitted). Customers retain a duty to be mindful of their own surroundings and use ordinary care. See Orsini v. Kohl's Dep't Stores, Inc., No. 3:08CV00860(DJS), 2009 WL 2590122, at *3 (D. Conn. Aug. 20, 2009) (citing Geohegan v. G. Fox & Co., Inc., 104 Conn. 129, 138, 132 A. 408 (1926)). A defendant has "no duty to protect the plaintiff from [her] own carelessness." Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 141, 811 A.2d 687 (2002).
In cases where a plaintiff is "shown to have a general familiarity with the condition or knowledge of the condition an appreciable amount of time prior to the accident," it is appropriate to find that the condition is open and obvious as a matter of law. Gatzki v. Shafer, No. CV010808100, 2006 WL 164880, at *3 (Conn. Super. Ct. Jan. 3, 2006). For example, in Orsini v. Kohl's Dep't Stores, Inc., No. 3:08CV00860(DJS), 2009 WL 2590122, at *3 (D. Conn. Aug. 20, 2009), the Honorable
Dominic J. Squatrito granted summary judgment to the defendant store after finding that the plaintiff failed to be watchful of her surroundings and use ordinary care to avoid danger. In Orsini, the plaintiff sustained injuries after tripping over a clothing display. Id. at *1. In granting summary judgment, Judge Squatrito noted that the plaintiff "had been to the store before and knew that there were display tables in the store." Id. at *3. The plaintiff also admitted to "having been by the particular area in question earlier and knowing that, as she was looking at the sale items, there would be display tables present." Id. Lastly, the plaintiff testified that nothing obstructed her view of the clothing display over which she tripped or the area surrounding the display. Id.
As another example, in Eady v. Dollar Gen. Corp., No. TTDCV196017653S, 2021 WL 3728299 (Conn. Super. Ct. Aug. 4, 2021), the court granted summary judgment where the plaintiff maneuvered past a stack of chairs to obtain merchandise and then fell when attempting to maneuver past the chairs a second time. Because the plaintiff had already seen and negotiated past the allegedly dangerous condition, there was no genuine dispute as to whether the plaintiff was aware of it. Id. at *3. Accordingly, the condition was open and obvious as a matter of law and summary judgment was appropriate. See also Legasse v. Amabile, No. CV990151784, 2001 WL 688538, at *3 (Conn. Super. Ct. May 30, 2001) (allegedly dangerous steep grass slope was open and obvious because plaintiff had used it frequently before).
Here, plaintiff admits that she was aware of the placement of the spatula and aware that it was out of her reach. (Dkt. #31-2 at 17-18). More specifically, plaintiff testified that she knew where the spatula was and saw how high it was. Id. Plaintiff recognized that she could not reach the spatula and made at least some effort to enlist help in removing the item from the shelf. Id. at 16. Rather than approach a register or continue searching for another shopper or employee to assist her, plaintiff chose to jump for the spatula. Id. There is no evidence that Kohl's "created a circumstance in which [the plaintiff] had no choice but" to jump for the spatula. Orsini v. Kohl's Dep't Stores, Inc., No. 3:08CV00860(DJS), 2009 WL 2590122, at *4 (D. Conn. Aug. 20, 2009). Therefore, defendant has offered sufficient evidence, including plaintiff's own testimony, to establish that the placement of the spatula was open and obvious to the plaintiff.
Defendant has satisfied its burden of establishing that no genuine dispute exists regarding whether plaintiff was aware of the allegedly dangerous condition or defect. Plaintiff, in response, has failed to raise a genuine issue of fact as to whether the allegedly dangerous condition or defect was open and obvious. Therefore, defendant is entitled to summary judgment on this basis.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment (dkt. #31) is GRANTED. Judgment will enter for the defendant.
This is not a recommended ruling. The consent of the parties allows this magistrate judge to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure. Appeals can be made directly to the appropriate United States Court of Appeals from this judgment. See 28 U.S.C. § 636(c)(3).
SO ORDERED this 24th day of January, 2024 at Hartford, Connecticut.