Opinion
HHDCV176079652S
01-28-2019
Donna JANKOWSKI et al. v. TRINITY HEALTH-NEW ENGLAND, INC. dba St. Francis Hospital & Medical Center
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
Before the court is the motion for summary judgment of the defendant, Trinity Health-New England, Inc., d/b/a St. Francis Hospital and Medical Center (Trinity), in this premises liability case in which the plaintiff, Donna Jankowski (plaintiff), claims she was injured on premises owned by Trinity (the "hospital") on June 21, 2015, as a result of a defective elevator the doors of which closed quickly on her causing injury. Trinity asserts the plaintiff is unable to establish notice-an essential element of premises liability-of any defect. The plaintiffs object on the ground that her expert identified a defect in A.3d "door protection device" that was inoperative at the time of his inspection and that it had been "rendered inoperative" for some time prior to June 21, 2015. Because the court is constrained to view the evidence in the light most favorable to the plaintiffs, the motion is denied.
Donna Jankowski’s husband, Robert, is also a plaintiff. He asserts a claim for loss of consortium. They will be referred to as the "plaintiffs."
Summary judgment may be rendered 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." Practice Book § 17-49. "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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). "[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 ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). "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." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).
"[F]or summary judgment, each moving defendant must show entitlement as a matter of law after first establishing the absence of any material issue of fact, which is effectively a form of certainty-the combination of no issue of material fact and entitlement as a matter of law leaves virtually no room for uncertainty, factual or legal." Steephill Renewables, LLC v. Board of Education, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-15-6025647-S, 2017 WL 2761711, at *2 (May 24, 2017, Povodator, J.).
The claim in the present case sounds in premises liability. The elements which comprise a premises liability claim are "(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.) Bisson v. Wal-Mart Stores, Inc., 184 Conn.App. 619, 628, 195 A.3d 707 (2018). The second element requires proof of either actual knowledge or constructive knowledge.
In support of its motion, Trinity offered excerpts from the deposition of the plaintiff; the affidavit of Robert Falaguerra, Trinity’s vice president of Facilities; excerpts from the deposition of Don Hentschel and maintenance/repair records for the hospital elevators. Falaguerra avers that Trinity had no actual notice of any defect in the elevator. Hentschel, an employee of Otis Elevator, and a mechanic stationed at the hospital, testified that his inspection of the elevator the day after the plaintiff’s injury found no defect. Moreover, an inspection of the elevator on May 19, 2015, a little over a month before the plaintiff was injured on June 21, 2015, found no defect in the operation of the door. In the view of Trinity, this establishes not only the lack of any actual notice but the absence of constructive notice. While Hentschel’s deposition testimony reflects his observations that there were no issues with the door sensors when he examined them there is no testimony provided to the court that the elevator functioning in proper order would have prevented Mrs. Jankowski’s injury.
The plaintiffs opposed summary judgment with the affidavit of their expert, William Seymour, an elevator technician and engineer, who inspected the elevator on July 9, 2018. He determined that the elevator had an Otis Lambda, 3D door protection device that "was rendered inoperative"; that the 3D device-if working properly-"would have sensed Mrs. Jankowski and caused the door to reopen or prevented the door from closing on Mrs. Jankowski causing her to fall and sustain severe injuries"; that his review of Hentschel’s deposition testimony indicated that Hentschel believed the door protection device was only of the 2D type and accordingly did not check the 3D device, and finally that the 3D device had been inoperative for "a period of time" prior to June 21, 2015.
In its reply to the plaintiff’s objection, Trinity offered the affidavit of its expert, Shawn Johnson, a certified elevator mechanic, in which Johnson averred that the elevator had both a 2D and 3D mode and the door was operating properly under the 2D mode when he inspected the elevator on the same day as Seymour. Johnson’s affidavit also provided that the industry standard did not require elevator door sensors to be operated in 3D mode. His affidavit does not disclose whether the elevator’s operation in the 2D mode would have prevented the plaintiff’s injury.
Trinity argued at oral argument that the court has no evidence that the door was defective in 2D mode. Our Supreme Court has defined defective conditions as "conditions making the premises not reasonably safe for the reasonably to be anticipated uses which the [injured party] would make of them." Masterson v. Atherton, 149 Conn. 302, 306, 179 A.2d 592 (1962). The mere fact that the 2D mode of operation was commonly used and accepted in the elevator industry or that industry standards did not require door sensors to be operated in 3D mode does not, in itself, eliminate any questions of material fact. "[E]vidence of custom in the trade may be admitted on the issue of the standard of care, but it is not conclusive." (Internal quotation marks omitted.) McDermott v. State, 316 Conn. 601, 614, 113 A.3d 419 (2015). Indeed, the trier of fact is not bound by the industry standard in a negligence action, but rather should consider it in light of the totality of the evidence presented in the case. Id., 615. There thus remains a question of material fact as to whether the operation of the door in 2D mode only constituted a defect.
Viewing the evidence before the court in the light most favorable to the plaintiffs, as the court must, there remains a genuine question of material fact as to notice. Seymour’s affidavit raises the circumstantial inference that the 3D sensor was rendered inoperable by the defendant or its agents. This is so because of his statement that the elevator was rendered inoperable-permitting an inference of active conduct by Trinity’s agents-and the experience recounted in his affidavit that the 3D devices are known to have glitches and owners have disabled the 3D device. Under this scenario Trinity would have had actual notice. "[T]he court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ..." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829, 92 A.3d 1025 (2014).
For the foregoing reasons, the court finds that there remain unresolved issues of material fact and the motion for summary judgment is denied.