Opinion
No. CV 04 4000411S
June 14, 2005
MEMORANDUM OF DECISION
This matter came before the court on April 25, 2005 on a motion for summary judgment filed by the defendant, BJ's Wholesale Club, Inc. For the reasons stated below, the motion for summary judgment is denied.
This case was first heard by the court at short calendar on March 28, 2005 at which time pursuant to Practice Book § 17-47, the court continued the matter to permit the plaintiff to complete discovery.
FACTS
On November 5, 2004, the plaintiff Helen Halsted, filed a one-count amended complaint sounding in negligence against the defendant, BJ's Wholesale Club, Inc. The plaintiff alleges that she slipped and fell on a patch of frozen liquid located a few steps from the defendant's store entrance and suffered injuries and losses as a result of the fall.
On January 27, 2005, the defendant filed a motion for summary judgment, accompanied by a memorandum of law in support. The defendant submitted the following in support of its motion for summary judgment: the amended complaint; excerpts of the deposition of the plaintiff; the affidavit of the defendant's customer service manager, Benjamin Clapp; and a photograph of the area where the plaintiff allegedly slipped and fell. On February 8, 2005, the plaintiff filed a memorandum in opposition to the defendant's motion for summary judgment. In support of the memorandum in opposition, the plaintiff submitted the affidavit of Ernest Halsted, the plaintiff's husband who accompanied the plaintiff. The plaintiff filed a supplemental memorandum in opposition to the defendant's motion for summary judgment on February 22, 2005. On March 1, 2005, the defendant filed a reply to the plaintiff's objection. On March 22, 2005, the plaintiff filed a second supplemental memorandum in opposition and submitted an excerpt from the deposition testimony of the defendant's general manager, John Michael Pszeniczny. On April 19, 2005, the plaintiff filed a third supplemental memorandum in opposition and submitted a report made by the defendant entitled Loss Prevention Report of Incident and a color photograph of the area where the plaintiff allegedly slipped and fell taken by the defendant.
DISCUSSION
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 deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving 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 substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
The defendant argues that there are no material issues of genuine fact and that it is entitled to judgment as a matter of law because the plaintiff cannot establish the following: (1) the existence of a specific defect; (2) that the defendant had actual or constructive notice of any condition which could have given rise to the plaintiff's alleged fall; and (3) that there is a causal connection between the plaintiff's fall and any purported defective condition. The defendant contends that the plaintiff stated in her deposition that she has no knowledge regarding what actually caused her fall. Also, the defendant argues that the plaintiff cannot show that the defendant had any reason to know of the existence of a slippery condition and that because the plaintiff cannot identify a specific defect, she cannot show causation.
In response, the plaintiff argues that she has established the existence of a defect and that the defendant has admitted that there was an ice patch where she fell. The plaintiff also contends that whether the defendant breached its duty of care by having actual or constructive notice of the icy condition is a question of fact for the jury to determine. She states that summary judgment is particularly ill-adapted to negligence cases because there are mixed questions of fact and law. The plaintiff also states that the decision in Rush v. Santacroce, Superior Court, judicial district of New Britain, Docket No. CV 98 0491584 (January 8, 2001, Swords, J.), is instructive, holding that the characterization of the defendant's inspection of the premises as ongoing and constant could lead the trier of fact to reasonably infer that the defendant had constructive notice of the defect that caused the plaintiff's fall.
The defendant argues that the plaintiff's contention that the defendant has admitted the existence of a defect is false. The defendant also contends that the plaintiff offers no admissible evidence as to the existence of a specific defect, relying only on the affidavit of the plaintiff's husband to support the conclusion that such a defect existed at the time of the alleged fall. The defendant further states that negligence cases are not always ill-adapted to summary judgment and that in cases such as the present action, summary judgment is appropriate because there are no mixed questions of fact and law. Additionally, the defendant argues that Rush v. Santacroce, supra, is easily distinguishable from the present case because in Rush, the evidence showed that the employees were constantly aware of the dangerous condition because they conducted continuous inspections. The defendant states that the plaintiff cannot show that the defendant conducted continuous inspections.
The plaintiff responds that the defendant's general manager stated under oath at deposition that inspection of the store's premises on the day of the plaintiff's injury was continuous. She also states that, according to the defendant's Loss Prevention of Incident Report, two witnesses saw her fall and that she intends to call them as witnesses at trial. Lastly, the plaintiff points to the photograph taken by the defendant of the area where she fell and argues that the photograph is enough evidence of the existence of a specific defect.
It is undisputed that the plaintiff was "a business invitee of the defendant and that, consequently, the defendant owed the plaintiff 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). "To hold the defendant liable for her personal injuries, the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Martin v. Stop Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002).
The defendant argues that the plaintiff cannot prove the existence of a defect because she stated in her deposition testimony that she had no specific recollection of what the frozen liquid she slipped on was. To prove the existence of a defect, the plaintiff has submitted the affidavit of the plaintiff's husband, Ernest Halsted, as well as the Loss Prevention Accident report stating that two witnesses saw the plaintiff fall and a photograph of the alleged area of the fall taken by the defendant. "[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." (Internal quotation marks omitted.) Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 474, 810 A.2d 278, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002).
The defendant cites Monahan v. Montgomery, 153 Conn. 386, 216 A.2d 824 (1966), in support of its position that the plaintiff has not shown the existence of a specific defect. In Monahan, the decedent was killed after falling on the defendant's property, where he had been cleaning branches and leaves. While the decedent stated just after the fall that he fell over a branch, there were no witnesses and he was never able to identify which branch had caused his fall. The Supreme Court held that because no specific branch was ever identified and because there was no evidence presented regarding the branch's size, position, or whether the decedent had moved the branch himself as he was in the process of cleaning up the debris in the area, a jury could not reasonably conclude that a specific defect existed. Id., 392. In the present case, the plaintiff has identified three witnesses and submitted a photograph of the area where the plaintiff fell depicting an icy patch on the ground. Looking at the evidence in the light most favorable to the nonmoving party, the plaintiff has presented sufficient evidence to demonstrate a genuine issue of material fact regarding the alleged defect that caused her fall.
As there has been no argument of evidence submitted that the defendant had actual notice of the icy condition at the store's entrance where the plaintiff sustained her injuries, the issue becomes whether the defendant had constructive notice of the defect. Constructive notice "turns on whether the condition existed for a length of time sufficient for the defendant's employees, in the exercise of due care, to discover the defect in time to have remedied it." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 619 A.2d 527 (1995). The defendant argues that the plaintiff has submitted no admissible evidence as to the length of time that the frozen liquid was present on the property. The defendant cites Page v. Burger King Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV96 0561567 (July 2, 1998, Teller, J.), in which the plaintiff slipped and fell on a tuna fish sandwich in the parking lot maintained by the defendant. In Page, the court granted the defendant's motion for summary judgment because the plaintiff submitted no evidence to support his claim of constructive notice. Id. The court stated: "There was no evidence of the condition of the sandwich, whether it had been driven over or stepped on, or anything else which would tend to demonstrate that the claimed defect had existed for such a length of time, that by reasonable inspection, the defendant would or should have discovered it." Id.
In response, the plaintiff cites Rush v. Santacroce, Superior Court, judicial district of New Britain, Docket No. CV 98 0491584 (January 28, 2001, Swords, J.), in which the court denied the defendant's motion for summary judgment, holding that there was a genuine issue of material fact as to whether the defendant had constructive notice of the defect because the defendant had classified the inspection of the premises as constant and ongoing. Id. The plaintiff argues that the defendant's store manager's deposition testimony, in which he responded affirmatively when asked if the defendant's employees were constantly looking for dangerous conditions within the store, makes the present case factually analogous to Rush. The plaintiff also contends that given the fact that it takes time for ice to form, it is reasonable to conclude that the defendant's employees should have known of the dangerous condition.
The court finds that this case is factually similar to Rush. The claim that the plaintiff slipped and fell on an ice patch and the classification of the defendant's inspection as constant creates a question of fact as to the length of time the specific defect or dangerous condition was in place and whether the condition had existed for a length of time sufficient for the defendant, in the exercise of due care, to have discovered the defect in time to have remedied it. Thus, it is a determination best left to the trier of fact. Notably, the Supreme Court has stated that summary judgment "is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
Finally, the defendant argues that the plaintiff cannot show causation because she has presented no evidence to show what caused her to fall. The defendant contends that at her deposition, the plaintiff could not say whether she fell on snow, ice or some unidentified frozen liquid and, therefore, it is mere speculation that her fall was somehow connected to a slippery condition on the defendant's premises. The plaintiff however, presented a photograph of the ice patch, three witnesses to the fall, the affidavit of Ernest Halsted stating that he saw the plaintiff slip and fall on an ice patch and the defendant's Loss Prevention Report of Incident which states: "Member allegedly slipped on ice patch immediately in front of garbage basket in front of vestibule." Given the specificity with which the ice patch was identified, the court finds that there is sufficient evidence to demonstrate a genuine issue of material fact.
The court finds the three Superior Court cases cited by the defendant to support the proposition that the plaintiff has not shown causation unpersuasive and distinguishable from the present case. In Keiser v. Bradlees, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0357918 (August 30, 2000, Mottolese, J.), "no particular ice was ever identified and whether it was a specific, isolated piece of ice or a component part of an accumulation of ice or slush [was] not disclosed." Id. The plaintiff in the present case has been able to identify a single ice patch located in front of a garbage can near the entrance to the defendant's store. In Oglesby v. Teikyo Post University, Superior Court, judicial district of New Haven, Docket No. CV 00 0445518 (September 12, 2002, Robinson, J.), when asked what caused her to fall, the plaintiff responded that she did not know. She also could not identify anything that was different about the spot where she fell than in the surrounding area, was not able to identify any object present that contributed to her fall and was not able to produce any witnesses. In the present case, the plaintiff stated she fell on something slippery and has been able to produce a witness stating that she slipped on an ice patch. There are also two witnesses identified on the Loss Prevention Report of Incident. In Robbins v. Stop Shop Co., Superior Court, judicial district of Meriden, Docket No. CV 97 0257036 (June 14, 1999, Beach, J.), the plaintiff set forth several theories regarding why she fell and was not able to give a detailed account as to how the fall occurred. In the present case, one theory of the fall has been advanced and the plaintiff has stated that she fell on something slippery, identified as an ice patch by a witness.
CONCLUSION
The motion for summary judgment is denied. The plaintiff has submitted sufficient evidence to show that there are genuine issues of material fact regarding the specific defect, whether the defendant had constructive notice of the defect and that the specific defect caused the plaintiff to slip and fall.
BY THE COURT,
Trombley, J.