Opinion
No. CV 01 038 19 54 S
November 3, 2004
MEMORANDUM OF DECISION
FACTS
The court, after considering the evidence produced at trial, finds the following facts.
On November 2, 1999, at approximately 11:30 a.m., the plaintiff, Maureen Kelly, entered into the Super Stop Shop supermarket on Kings Highway in Fairfield, Connecticut. She acquired a shopping cart and went toward the salad bar located near the produce and floral departments of the store. When she arrived at the salad bar, the plaintiff walked away from her shopping cart, picked up a tin container and began to place mixed fruit and cottage cheese into the container. The plaintiff stood on a carpeted runner in front of the salad bar. As she turned to leave the salad bar and return to her shopping cart, the plaintiff's left foot slid, causing both her feet to kick up in the air resulting in her falling and injuring her left shoulder. While she was still on the floor, the plaintiff observed a store employee cleaning the cottage cheese and fruit from around her feet. A customer asked the plaintiff if she was all right, helped her onto her feet and went to get the store co-manager, Nicholas Bishighini.
As she was waiting for Bishighini and cleaning herself up, the plaintiff noticed a lettuce leaf on the side of her left shoe, which she described at trial as "green," "wet" and "slimy." The plaintiff did not know how the lettuce leaf had gotten onto the floor or the length of time it had been there. When he arrived, Bishighini asked the plaintiff how she felt, and the plaintiff replied that she did not know but that her shoulder hurt. Bishighini offered to call an ambulance, which she declined.
The plaintiff attempted to continue her shopping; however, because she began to experience more pain in her shoulder, she decided to finish and return home. The next day, the plaintiff went to her primary physician, who referred her to another doctor, Dr. Brittis, for treatment. Upon further medical examination, Brittis diagnosed the plaintiff as having suffered a torn rotator cuff of her left shoulder. She subsequently filed the present action against the defendant Stop Shop. In count one, the plaintiff alleges negligence on the part of Stop Shop. Count two is brought on behalf of the plaintiff's husband for loss of companionship, assistance and guidance.
DISCUSSION Count One
"Invitees fall into certain general categories. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public . . . A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). "It is undisputed that the plaintiff in this case 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). "[I]f 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 allowed to recover damages for [her] injuries." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). "For the plaintiff to recover for the breach of duty owed her as a business invitee, she [must] allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her fall . . . 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." (Citations omitted; internal quotation marks omitted.) Fuller v. First National Supermarkets, Inc., 38 Conn.App. 299, 301, 661 A.2d 110 (1995).
In the present case, the plaintiff makes no allegations that Stop Shop had actual notice that the self-service salad bar was in a defective condition. At trial, she testified that she had not observed the lettuce on the side of and underneath her shoe until after she fell. She further testified that she had no knowledge as to how the lettuce came to be on the floor and had no reason to know or any knowledge about whether a Stop Shop employee knew about the lettuce prior to her fall. Since the plaintiff has not alleged that the defect was caused by the defendant or its employees, she must establish the requisite element of notice to attach liability to Stop Shop. It is clear that the plaintiff cannot satisfy the notice requirement.
The issue is whether Stop Shop had constructive notice of the defect. "An occupier of land is chargeable with constructive notice of defects when dealing with invitees . . . The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it . . . It is settled that circumstantial evidence can establish constructive notice." (Citations omitted; internal quotation marks omitted.) Kurti v. Becker, 54 Conn.App. 335, 338-39, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999). "[U]nder some circumstances, the condition of the material that caused the fall could give rise to an inference that the defect had existed for a long enough period of time for the defendant to have had notice of it, such an inference is most likely to occur when the substance causing the fall is of a liquid or semiliquid nature, such as water, juice, food stuffs, etc. that had congealed, spread or otherwise exhibited some indication of the amount of time it had spent in harm's way." (Internal quotation marks omitted.) Hann v. 7-Eleven, Inc., Superior Court, judicial district of Tolland at Rockville, Docket No. CV 020080203 (June 3, 2004, Scholl, J.).
A case that is analogous to the present case is Morris v. King Cole Stores, Inc., 132 Conn. 489, 45 A.2d 710 (1946). In Morris, the plaintiff slipped and fell near the entrance of the defendant store on strawberries and a piece of lettuce. The plaintiff testified that the lettuce on the floor "was dirty and it looked as though several people stepped on it before. The lettuce and the strawberries looked as if they were crushed. They lay flat and they were dirty." Id., 491-92. The Supreme Court found that while "[t]here is no direct evidence as to the length of time the defect had existed, and therefore the claim is that from the evidence concerning the condition of the substance — that it was dirty and looked as though several people stepped on it before, and that the lettuce stuck to the floor — the jury could reasonably find constructive notice." Id., 493. The Supreme Court further stated that "[e]vidence 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., 494.
Based on the evidence and testimony presented at trial, the court finds that the defendant did not have constructive notice of the lettuce leaf. It cannot be inferred or established by the condition of the lettuce leaf that it was present for a sufficient length of time where the defendant, in the exercise of reasonable care, would have discovered its presence. "The plaintiff offered no evidence, direct or circumstantial, to show that the defect had existed for any period of time to enable the court to exercise its function as factfinder . . . An inference must have some definite basis in the facts . . . and the conclusion based on it must not be the result of speculation and conjecture." (Citation omitted; internal quotation marks omitted.) Gulycz v. Stop Shop Cos., supra, 29 Conn.App. 522. The plaintiff is unable to meet the notice requirement necessary for her to prevail on her negligence claim.
Judgment shall be entered for the defendant on count one, inasmuch as the plaintiff has not met her burden of proof in showing that the defendant had actual or constructive notice of the defective condition causing her injuries.
Count Two
In the second count, the plaintiff's husband alleges a claim of loss of companionship, guidance and assistance. The Supreme Court has defined the term consortium "in the spousal context as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage . . . These intangible elements are generally described in terms of affection, society, companionship and sexual relations . . . These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage." (Citations omitted; internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 477-78, 717 A.2d 1177 (1998). "Loss of consortium is a derivative cause of action, meaning that it is dependent on the legal existence of the predicate action . . . That is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." (Citation omitted.) United Services Automobile Assn. v. Kaschel, 84 Conn.App. 139, 147 n. 9, 851 A.2d 1257, cert. denied, 271 Conn. 917 (2004).
The court finds that the claim for loss of society, companionship, guidance and assistance must fail because of its derivative nature to the plaintiff's failed predicate cause of action of negligence against the defendant. Accordingly, judgment shall be entered for the defendant as to count two.
RICHARDS, J.