Opinion
No. MMX CV08 500 5048 S
September 25, 2009
MEMORANDUM OF DECISION
On August 11, 2008, the plaintiff Jennifer James filed a one-count complaint against the defendant The Valley Shore Y.M.C.A, Inc. in which she alleged that on or about June 27, 2007, she was going down stairs into a swimming pool "when she was caused to fall on a slippery substance on the steps." (Complaint, pp 1.) She also alleged that at such time the "property and premises were controlled, possessed, managed, and/or maintained" by such defendant. Id., pp 2. She set out various alleged specifications of negligence and also alleged that "[t]he defendant knew, or had it exercised due care and proper diligence, should have known" of such conditions. Id., pp 3-4.
On April 15, 2009, pursuant to General Statutes § 17-44, et seq., the defendant moved for summary judgment. On August 27, 2009, the plaintiff filed its objection to the defendant's motion for summary judgment. On September 21, 2009 the court heard argument on such motion and opposition.
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. Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Id. The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that such party is, therefore, entitled to judgment as a matter of law. Id. The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. Id.; see also Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988); Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982). See also Curley v. Kaiser, 112 Conn.App. 213, 220, 862 A.2d 167 (2009):
A material fact is "a fact which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "[I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J.P. Fund Associates, Inc., 109 Conn.App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).
On February 24, 2009, the defendant took the deposition of the plaintiff. (Defendant's exhibit A.) She admitted or stated the following, inter alia:
1. Her husband did not see her fall, but he saw her hanging. Id., 3.
2. The date and time of the alleged incident was at about 12:15 or 12:30 p.m. on the second day she had been at the pool. Id., 30-32.
3. On the day of the alleged incident she did not tell any representative of the defendant that the accident had occurred and that something had happened to her.
4. On the second day she went into the pool the way she had on the first day and she used the same ladder. Id., 48-49.
5. She did not have any problem with the ladder steps on the first day. Id., 49.
6. On the first day she used the ladder twice, once to go into the pool and once to climb out of the pool. Id., 52.
7. On the first day neither she nor her husband noticed any problem with the steps, the ladder or any slippery conditions. Id., 52-53.
8. With respect to the alleged incident, she stated that she slipped and she was hanging on to both side rails of the ladder, that she couldn't get up and that she was swimming. Id., 61, 81. She was swinging with her hands on the rails. Id.
9. She stated that on the second day the steps were slimy, that they had residue on them, but that had not occurred on the first day. Id.
10. She stated that she did not know how long the residue or substance was on the steps before she fell, how it came to be on the steps, or what it was. Id., 62.
11. Approximately two months later she went to the defendant to report the accident. Id., 66. Thus, despite the claim of an alleged condition that caused the plaintiff to slip and injure herself while on the ladder going into the pool neither she nor her husband reported to any representative of the defendant on the day of the alleged accident that there was a safety issue on the steps that might endanger others.
12. She stated that "[a]ll I know is I put my foot and I went out onto the rails." Id., 72-75.
13. She did not know the step on the ladder on which she stepped or whether the step was above or under water. Id.
14. Her husband scraped off some residue from a step that was below the pool water line. Id., 76.
15. She doesn't know if her husband removed residue from the step on which she slipped. Id., 77.
16. She does not know if she slipped because she misstepped with her right foot. Id., 81.
17. Although she was looking and she was able to see clearly, she did not see any residue on the step where she intended to place her right foot. Id., 82.
The defendant also submitted two affidavits. The first was from the Aquatic Director for the defendant. Such aquatic director averred:
4. At the time of this incident I was the Assistant Aquatic Director for The Valley Shore YMCA, Inc. I was present at the pool where the accident is alleged to have occurred on a daily basis in June 2007.
5. In June 2007, no one reported any problem with the steps or slippery substance or residue on the steps before Jennifer James claims she fell.
6. No one has ever complained about any slippery substance or residue being present on the pool steps where this accident is alleged to have occurred before Jennifer James claims she fell in June 2007.
7. No one other than Jennifer James has ever complained about any slippery substance or residue being present on the pool steps.
8. No one other than Jennifer James has ever claimed to have been injured on the pool steps at issue in this lawsuit.
The second affidavit was from the Associate Executive Director of the defendant. Such associate executive director averred:
4. I was the Executive Director of The Valley Shore YMCA, Inc. in June 2007 when the accident at issue in this lawsuit is alleged to have occurred.
5. In June 2007, no one reported any problem with the pool steps or slippery substance on the pool steps before Jennifer James claims she fell.
6. No one has ever complained about any slippery substance or residue being present on the pool steps where this accident is alleged to have occurred before Jennifer James claims she fell in June 2007.
7. No one other than Jennifer James has ever complained about any slippery substance or residue being present on the pool steps.
8. No one other than Jennifer James has ever claimed to have been injured on the pool steps at issue in this lawsuit.
A similar affidavit was also filed by the person who was membership director of the defendant in June 2007.
The plaintiff responded to the foregoing with a portion of the deposition of the facilities director of the defendant who was in charge of maintaining the pool before and after the alleged incident. His testimony included the following:
Q So are you on the premises every day?
A Yes.
Q Let's talk about at the time of the incident in `07. Were there procedures that you followed with respect to maintaining the pool back then?
A I'm here seven days a week. The first thing I do when I come here is, I check the pools. I check with the lifeguards to see if there's anything out of the ordinary for both pools. Then I check the two chemical systems. We have automatic feed systems; I check them and I fill them up, and do what I have to.
Q This was in 2007?
A Yes.
***
Q But if there was some kind of slipperiness or sliminess on there — and I understand you don't know whether there was or not but I'm saying if there was, would you agree it would have taken some time to develop that way?
A If there was, it would take a period of time, like a good, long period of time.
Q Why do you say that?
A Because of our chemicals.
Q What about the chemicals?
A Well, the chlorine kills all your stuff that's in the pool . . . chlorine kills it and then it's filtered out.
Q So that if there was a buildup on the steps, it would have had to occur gradually, is that what you are saying?
A If — I would say that if I stopped putting chemicals in this pool right now, within maybe four or five days you would see the pool start to turn a tinge of green. And then you would start to see this precipitate out onto other things.
But right now, because there's nothing in there, leaving no chemicals in there, it would take a long time. And it wouldn't happen in one hour, in two hours. It would take days. I base that on the fact that I maintain another pool off here. And we — it's run by the owner, during the summer we take it over. And they stop pumping and filtering it and putting chemicals in it, and I have seen it go for four or five days and still no algae buildup, okay? That's what I base it on.
Q But algae buildup does happen sometimes in pools, correct?
A If they're not maintained.
Q But since this pool was maintained, if there was any buildup of slipperiness, you are saying it would have had to have taken a very long time?
A Yes.
The plaintiff also submitted an affidavit from the plaintiff's husband containing the following:
5. I had entered the pool before my wife, and was already in the pool at the time my wife was caused to slip on the stairs going into the pool.
6. Right after my wife's slip, I went over to the stairs to see what caused her to slip. When I ran my hand over the steps, I felt a slimy, slippery, algae-like build-up covering the steps.
7. In the entire time I was at the pool, I saw nobody spill anything on the steps, nor did I observe anything else to indicate that the slimy deposit was freshly placed on the steps prior to my wife's slipping incident. Rather, my observation was that this was a slimy deposit from the condition of the pool that built up over time, though I cannot say exactly how long.
8. I saw no hazard sign anywhere to warn pool patrons that the steps might be covered with a slippery, slimy build-up.
9. In the entire time I was at the scene, I saw no pool attendant monitoring the steps to clean up hazards such as this one.
The plaintiff has admitted that she did not know how long the alleged residue or substance was on the steps before she fell, how it came to be on the steps, or what it was. She doesn't know if her husband removed residue from the step on which she slipped. Although she was looking and she was able to see clearly, she did not see any residue on the step where she intended to place her right foot.
She could not identify the step on the ladder on which she stepped, or whether such step was above or under water. She does not know if she slipped because she misstepped with her right foot. She stated that "[a]ll I know is I put my foot and I went out onto the rails."
The plaintiff has not raised a genuine issue of material fact concerning the defendant's lack of actual notice of the presence of the specific unsafe condition that caused her fall:
For the plaintiff to recover for the breach of a duty owed to her as a business invitee, she had to allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her fall. LaFaive v. DiLoreto, 2 Conn.App. 58, 60, 476 A.2d 626 (1984); see Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966).
Fuller v. First National Supermarkets, 38 Conn.App. 299, 301, 661 A.2d 110 (1995) (emphasis supplied). Although the plaintiff's husband averred that a step was covered with a slimy or slippery algae-like substance, which he did not show to anyone, he did not aver whether the substance was on the step in a transitory manner (e.g., that it would be washed off the step in the normal course of water movement in the pool), or that he had a basis to determine that it would remain on the step until removed through human intervention. He did not aver how long the substance had been on the step prior to his discovery of it. As further set forth in Fuller, id.:
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. LaFaive v. DiLoreto, supra, 60 . . .
There is no genuine issue of material fact as to the defendant's lack of actual notice of the unsafe condition alleged by the plaintiff. Thus, the question is whether there is a genuine issue of material fact concerning constructive notice to the defendant:
When, however, the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition, we have stated that "[t]he controlling question [becomes] that of constructive notice: whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it." Morris v. King Cole Stores, Inc., 132 Conn. 489, 492-93, 45 A.2d 710 (1946). "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. The nature of the business and the location of the foreign substance would be factors in this determination . . ." Id., 494. "To a considerable degree each case must be decided on its own circumstances. Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant." Id.
Kelly v. Stop Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007) (emphasis supplied).
The plaintiff has not raised a genuine issue of material fact through the defendant's employee in charge of the pool, whose testimony was general in nature because he did not see the specific substance that the plaintiff's husband averred he found, that 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:
It is not disputed that the plaintiff was a business invitee, and that the defendant owed him a duty to keep its premises in a reasonably safe condition. Cruz v. Drezek, 175 Conn. 230, 234, 397 A.2d 1335 (1978). Also undisputed is that, if that duty was breached, and if the defendant had actual or constructive notice of the defect within a reasonable time to remedy it, the plaintiff would be entitled to recover damage for his injuries. Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710 (1946). The plaintiff produced no evidence to establish that the defendant had actual notice of the alleged defect. Whether the defendant had constructive notice of this condition turns on whether the condition existed for a length of time sufficient for the defendant employees, in the exercise of due care, to discover the defect in time to have remedied it. McCrorey v. Heilpern, 170 Conn. 220, 221, 365 A.2d 1057 (1976).
While an abundance of evidence is not necessary to show a sufficient length of time existed for discovery of the condition; see Kapilotis v. Shop Rite Supermarket, Inc., 14 Conn.App. 250, 251, 540 A.2d 376 (1988); some evidence is required. Schwarz v. Waterbury Public Market, Inc., 6 Conn.App. 429, 432-33, 505 A.2d 1272 (1986). Where some evidence has been submitted, what constituted a reasonable length of time becomes a question of fact to be determined on the basis of the circumstances of the case. Id.
Gulycz v. Stop Shop Co., 29 Conn.App. 519, 521-22, 615 A.2d 1087 (1992) (emphasis supplied).
Also, the plaintiff has not raised a genuine issue of material fact concerning any circumstantial evidence that would enable a factfinder to postulate constructive notice:
Although circumstantial evidence can establish constructive notice; Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 287, 587 A.2d 1056 (1991); no such circumstantial evidence exists here. The plaintiff offered no evidence, direct or circumstantial, to show that the defect had existed for any period of time so as to enable the court to exercise its function as factfinder.
Nor was the court able to infer that the defect had existed for any length of time, since there was no evidence to establish a basis for such an inference. "An inference must have some definite basis in the facts;" Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); and the conclusion based on it must not be the result of speculation and conjecture. Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959).
Gulycz v Stop Shop Co., 29 Conn.App. 519, 521-22, 615 A.2d 1087 (1992) (emphasis supplied). See also, e. g., Shaw v. KMART Corp., 2007 Ct.Sup. 12532, 12535, No. CV-06-5000627-S, Superior Court, Judicial District of Ansonia-Milford at Derby (Esposito, J., July 13, 2007 (summary judgment for the defendant: "The plaintiff also claims that the evidence demonstrates that the defendant had constructive notice of the existence of the wet spot. The plaintiff fails, however, to offer any evidence, direct or circumstantial, to show that the wet spot had existed for any period of time. Instead, the plaintiff argues that, because it had stopped snowing the day before, the defendant's employees had a sufficient length of time to anticipate, observe and clean up any wet spots that were likely to accumulate on the floor. This argument has no merit because it does not demonstrate that the specific wet spot that caused the plaintiff's injury had existed for any length of time and it merely suggests that general conditions naturally productive of wet spots existed . . ."); Dizenzo v. GAP, Inc., 2006 Ct.Sup. 10384, No. CV04 500 00 65 S, Superior Court, Judicial District of Fairfield at Bridgeport (Gilardi, J., June 5, 2006) (summary judgment for the defendant: "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 . . ."); and Lane v. Shop Rite of Waterbury, LLC, 2006 Ct.Sup. 9592, 9595-96, No. CV03-0182136S, Superior Court, Judicial District of Waterbury at Waterbury (Gallagher, J., May 24, 2006) (summary judgment for the defendant: "The question for this court is whether the plaintiff has submitted some evidence which would support an inference from which a trier of fact could conclude, without speculation and conjecture, that the specific alleged defect existed for a sufficient amount of time for the defendant, in the exercise of due care, to have discovered and to have remedied the defect. If the plaintiff's evidence goes no farther than to establish the existence of the specific defect alleged, the court must grant the defendant's motion for summary judgment in the defendant's favor because the plaintiff's evidence would not warrant the inference that the defendant had constructive notice of the defect. The plaintiff admits to not knowing how long the wet substance had been on the floor and to not knowing how the substance got onto the floor. The plaintiff testifies that from what he saw, the substance was clear, wet and like a watery substance, but also testified that he never touched the substance to identify it. The plaintiff did not submit any evidence which would indicate that the defendant had any notice that the floor was wet. He has not provided any evidence of the condition and duration of the specific defect alleged or that goes farther than establishing the existence of the defect. The plaintiff additionally fails to provide any factual basis upon which the court can infer the length of time the defect existed . . .").
As in any civil case, in this case the general burden of proof is on the plaintiff, who must prove all the essential allegations of her complaint. Gulycz v. Stop Shop Co., supra, 29 Conn.App. at 523. The plaintiff has not raised genuine issues of material fact (1) concerning the lack of proximate cause between the alleged accident and the alleged unsafe condition, and (2) concerning the defendant's lack of actual or constructive notice of the alleged unsafe condition.
In light of the foregoing, the defendant is entitled to judgment as a matter of law on the plaintiff's one-count complaint.