Opinion
UWYCV136020674S
02-25-2016
Shirley Ibelle v. Shop-Rite Supermarkets, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #166
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
This action was initiated by way of writ, summons and complaint filed on August 20, 2013. The complaint was amended as a right on September 12, 2013. On November 12, 2013, Southbury 84 Associates Limited Liability Company was cited in as a defendant. The plaintiff alleges that Southbury 84 Associates is the owner of the property in question.
The defendant Southbury 84 Associates Limited Liability Company (Southbury 84) has filed a motion for summary judgment arguing that the plaintiff has failed to demonstrate any actual or constructive notice of the alleged dangerous condition and that the plaintiff cannot establish the location of where she fell. The plaintiff filed an opposition to the motion dated November 23, 2015. The parties appeared and argued on December 17, 2015.
II. FACTUAL BACKGROUND
The plaintiff alleges that on March 5, 2013 she was a patron at the Shop Rite supermarket located at 775 Main Street South in Southbury when she was caused to slip and fall on a " slippery/icy condition on the walkway/parking spot area in the parking area adjacent to the store." The plaintiff alleges that she parked her car in the spot next to a curb area where there was an accumulation of ice and snow that was on the curb area as well as the parking lot. She alleges that the parking spot was a narrow space and she could not get to the grocery store without walking over the curb island area next to the space. On the date, of this incident she had exited her car, walked into the store, returned to her car at which time she realized she forgot something and took a second trip to the store. After the second trip into the store the plaintiff returned and placed the purchased item into her car at that time she fell. She contends that she fell as a result of the ice and snow left on the curb and flowing onto the parking lot where her car was parked. The defendant Southbury 84 is the owner of the property and the plaintiff alleges that it failed to properly maintain and inspect the area where there was snow and ice and failed to properly salt or sand the parking lot.
III. DISCUSSION
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc. 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion " the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Assocs. No. 1 v. Ins. Co. of Pa., 231 Conn. 756, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . ." Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendant argues that summary judgment is proper because the plaintiff cannot establish that the defendant had actual or constructive notice of any slippery or icy condition within the actual parking lot portion of the lot. The defendant also argues that the plaintiff has failed to describe the area where she fell and thus the action must fail.
Under the theory of premises liability " [t]he law is clear that [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.) Gargano v. Azpiri, 110 Conn.App. 502, 508, 955 A.2d 593 (2008). " Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property." LaFlamme v. Dallessio, 261 Conn. 247, 251 802 A.2d 63 (2002).
The person or entity in possession and control of the property " does not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 117, 49 A.3d 951 (2012). " Under Connecticut law, the existence of both actual and constructive notice is a question of fact." Vendrella v. Astriab Family Ltd. P'ship, 133 Conn.App. 630, 659, 36 A.3d 707 (2014). " [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 quotation marks omitted.) James v. Valley-Shore Y.M.C.A., Inc. 125 Conn.App. 174, 179, 6 A.3d 1199 (2010) cert. denied 300 Conn. 916, 13 A.3d 1103 (2011). In the instant action, the plaintiff presented the deposition testimony of the plaintiff as support for its position that the defendant did not have actual or constructive notice of a dangerous condition. The defendant argues that the plaintiff cannot demonstrate how long the condition existed before she fell but in response to the motion the plaintiff indicates that the weather conditions demonstrate that it had been at least two days since the last snow before her fall. (Memorandum at page 7.) She also argues that the time from the snow until the fall essentially was sufficient to inspect and determine that there was an accumulation in the area where she fell.
" The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy." Cruz v. Drezek, 175 Conn. 230, 238-39, 397 A.2d 1335 (1978). " What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case." Riccio v. Harbour Vill. Condo. Ass'n, 281 Conn. 160, 163-64, 914 A.2d 529 (2007) citing Morris v. King Cole Stores, Inc., 132 Conn. 489, 45 A.2d 710 (1946). A two day interim period with the presence of an accumulation of ice and snow raise an issue as to whether it was a sufficient length of time for the defendant to inspect and/or recognize that there was a condition to remedy. The defendant relies upon the decision in James v. Valley-Shore Y.M.C.A., Inc., supra, 125 Conn.App. 174 (2010) in support of its position that the plaintiff has failed to demonstrate constructive notice to the defendant. The factual basis of James is very different than the instant action. In James the plaintiff was unable to point to any visual recognition of the residue which she contends caused her fall and in fact does not confirm that she came into contact with the specific residue that she alleges caused her fall. In James it was the testimony of another person who was not certain about the general conditions who pointed to the residue on one of many steps of the ladder as the cause of the fall. Additionally, the court in James was not presented with any testimony that could support the presence of the residue for such a length of time as to provide an opportunity for the defendants' employees to discover and remedy the defect. In the present action, the plaintiff points specifically to the snow and ice that had accumulated next to her parking space and the presence of the ice and snow on both the curb island and the parking lot.
Given the deposition testimony of the plaintiff and the apparent fall as she indicated on the lot and under her car, there is a question of fact as to whether the defendant properly removed the snow and whether the defendant did an inspection of the property after the last snow storm to determine if the premises were safe. There is absolutely no evidence of the placement of sand or salt on the parking lot as a means to address the snow and ice. As to the location of the fall it is a question of fact for the jury to determine whether the plaintiff fell in an area which the defendant had a duty to inspect and maintain so as to prevent a dangerous condition to the business invitees utilizing the parking lot.
IV. CONCLUSION
The motion for summary judgment is denied. There are questions of fact as to whether the defendant had constructive notice of the accumulation of snow and ice and whether it failed to in its duty to sand or salt the area where the plaintiff fell. There is also a question of fact as to whether the area in which the plaintiff fell was within the area to be maintained by the defendant based on its use and location by invitees.