Opinion
UWYCV146023599S
01-08-2016
Suzanne Lorusso v. Sand Hill (E& A) LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #106
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
The plaintiff brought this action by way of writ, summons, and complaint filed on March 19, 2014 in the judicial district of Fairfield. The complaint was transferred to the judicial district of Waterbury on April 21, 2014. The complaint is in one count against Sand Hill (E& A) LLC. The plaintiff filed a motion for summary judgment on February 19, 2015. The plaintiff filed an objection on April 28, 2015. The matter was heard on short calendar on September 14, 2015.
II. FACTS
The plaintiff, Suzanne Lorusso, filed this complaint against Sand Hill (E& A) LLC., the defendant, alleging the following facts. On December 19, 2012, the plaintiff was walking along the sidewalk in front of Olympia Sports at 228 South Main Street, Newtown, Connecticut (premises), which was owned by the defendant and was caused to trip and fall to the ground as a result of a defective expansion joint in the sidewalk that was too wide. The plaintiff contends the fall was caused by the negligence and carelessness of the defendant, its employees, agents and/or servants, in one or more of the following ways: (1) the premises were not in a reasonably safe condition due to the width of the sidewalk's expansion joint; (2) the defendant failed to warn the plaintiff of the excessive width of the expansion joint; (3) the defendant failed to properly maintain the premises in a reasonably safe manner; (4) the defendant knew and/or should have known of the sidewalk's unsafe condition and failed to remedy the unsafe condition; and (5) the defendant failed to exercise the degree of care which a reasonably careful person would have exercised under the circumstances. As a result of the fall, the plaintiff sustained injuries.
On February 19, 2015, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material facts concerning the plaintiff's inability to specifically identify the defective conditions that allegedly caused her injuries. The defendant, therefore, did not and could not have had actual or constructive notice of the alleged defective condition and, thus, is entitled to judgment as a matter of law. The motion is accompanied by a memorandum of law and a verified copy of the plaintiff's deposition transcript. 'The plaintiff filed an objection to the defendant's motion for summary judgment on April 28, 2015, but she did not attach any additional evidence. Counsel appeared and argued the motion and objection on September 14, 2015.
" [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e. that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document . . ." (Citations omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). The deposition testimony in this action has been properly certified for consideration by the court.
The plaintiff notes in her objection that the report of her expert, John M. Orlwoski, P.E., CSP, BCFE, concludes that there is an unreasonably dangerous and defective expansion joint at the precise location where the plaintiff has indicated that she fell. (See Plaintiff's Objection, p. 8.) The plaintiff's expert, however, has not been properly disclosed and his report was not previously disclosed or attached to the plaintiff's objection. Therefore, the expert opinion has not been considered by the court. See also, Somers Mill Associates, Inc. v. Fuss & O'Neill, Inc., Superior Court, Judicial district of New Britain, Complex Litigation Docket, Docket No. X03-CV-00-0503944-S, (February 27, 2002, Aurigemma, J.) (" A party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . A statement by counsel in a legal memorandum that an expert will provide certain evidence at time of trial does not constitute evidence of anything" [citations omitted; emphasis omitted]). Moreover, whether or not the plaintiff's expert's report will be inadmissible at trial is of no consequence because that burden of proof for the purposes of this motion for summary judgment does not shift to the plaintiff in the present action.
III. DISCUSSION
" 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 . . . In deciding a motion for summary judgment the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater-New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" 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). " 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 77 A.3d 726 (2013). " 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).
" [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case . . . Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment . . . [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings . . ." (Citations omitted; internal quotation marks omitted.) Id., 320-21. " On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . Accordingly, [w]hen 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." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 626-27, 57 A.3d 391 (2012).
" Issues of negligence are ordinarily not susceptible to summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure 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 . . ." (Citation omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
In the present case, the defendant argues that there is no genuine issue of fact and that it is entitled to judgment as a matter of law because the plaintiff cannot identify the alleged defective condition, and the defendant did not have actual or constructive notice of the alleged condition that caused the plaintiff's injury. The plaintiff counters that there is sufficient circumstantial evidence regarding the specific defect that caused her injury, and the plaintiff also argues that such evidence raises a genuine issue of material fact as to whether notice is even necessary because the defendant may have affirmatively created the alleged defective condition.
" The essential elements of a cause of action in negligence are well established: duty, breach of that duty; causation; and actual injury . . . As to the first element, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee . . . In particular, [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 . . . The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land. Although an invitation itself does not establish the status of an invitee, it is essential to it." (Citation omitted; internal quotation marks omitted.) Perrone v. Sutfin, Superior Court, judicial district of New Haven, Docket No. CV-10-6007487-S (August 16, 2011, Zoarski, J.T.R.) .
" The duty that a . . . [possessor of land] owes a licensee . . . does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them . . . A licensor may owe a duty to a licensee however, if the licensor actually or constructively knows of the licensee's presence on the premises . . . the licensor must use reasonable care both to refrain from actively subjecting him to danger and to warn him of dangerous conditions which the possessor knows of but which he cannot reasonably assume that the licensee knows or by reasonable use of his faculties would observe . . . Circumstances may be enough to impute knowledge of presence to the defendant." (Citations omitted; internal quotation marks omitted.) Nucifora v. Orbit Marine Sports Center, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-00-0377691-S, (March 8, 2002, Thim, J.).
" A business owner owes its invitees a duty to keep its premises in a reasonably safe condition . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover . . . Nevertheless, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe conditions which caused [his injury] or constructive notice of it . . . [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 . . . In the absence of allegations and proof of any facts that would give rise to an enhanced duty . . . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers . . . Accordingly, business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116-17, 49 A.3d 951 (2012). " Business owners are chargeable with constructive notice of a dangerous condition when, had they exercised reasonable care, they would have discovered the condition . . . Constructive notice is triggered by a general duty of inspection or, when the dangerous condition is not apparent to the human eye, some other factor that would alert a reasonable person to the hazard." (Citations omitted.) Id., 117-18.
As to the duty, in the present case, the defendant appears to argue, and the plaintiff concurs, that the plaintiff was a business invitee on the premises when the accident occurred. (See Def's Mem. of Law in Support of the Motion for Summary Judgment, pp. 4-5, 7; Pl's Objection, p. 5.) During oral argument on September 14, 2015, however, the defendant's counsel asserted that in addition to the plaintiff not being able to identify the specific defective condition that caused her to fall and injure herself, the plaintiff could not specify the exact location where she fell. Both parties' counsels indicated to the court that the plaintiff knew the general area within which she fell. The defendant presented the court with the plaintiff's deposition transcript, in which the plaintiff testified that when she fell she " was right in between Franco's and Olympia. I think I had just passed Franco's door because I remember Olympia had stuff on the sidewalk . . ." (See Def's Memorandum of Law in Support of Motion for Summary Judgment, Ex. A, p. 52.) During the plaintiff's deposition, she was shown a photograph of the sidewalk and asked if she could see where she fell on the sidewalk, and the plaintiff replied: " Again, I couldn't really say. I know it was probably- It was past the door so it was in the vicinity here and here. It wasn't near their front door, it was in this space here." (See Def's Memorandum of Law in Support of Motion for Summary Judgment, Ex. A, p. 59.) Further, when the plaintiff was asked to circle the area where she fell, the plaintiff stated: " I don't know exact. Could I make a big choice? . . . Honestly, like I said, I wasn't even looking at the spot. When I got up I just beelined for the branch." (See Def's Memorandum of Law in Support of the Motion for Summary Judgment, Ex. A., p. 64.)
" A plaintiff can prove elements of negligence using either direct or circumstantial evidence . . . Circumstantial evidence need not be so conclusive as to exclude every other hypothesis . . . Rather, circumstantial evidence must only [produce] in the mind of the trier a reasonable belief in the probability of the existence of the material fact." (Citations omitted; footnote omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 777-78, 83 A.3d 576 (2014).
Counsel argued that there is circumstantial evidence by way of the plaintiff's deposition testimony that she was aware of the general area in which she fell. The parties during argument indicated that the plaintiff circled the area of her fall on a photograph during her deposition, however, counsel did not present the photograph with the notation of the area to this court at argument. Therefore, the court cannot consider the size of the " area" that the plaintiff circled, cannot determine the distance between where the plaintiff fell and the premises, and/or if the plaintiff fell within the actual boundaries of the premises. Moreover, the defendant's counsel conceded at oral argument that the defendant was the owner of the premises, but the defendant subsequently filed an answer and special defenses on October 30, 2015, in which the defendant denied that it owned, managed, controlled, maintained, operated or possessed the premises. The defendant has not filed any additional evidence or an affidavit identifying the exact parameters of its ownership/control of the premises. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726.
Even if the court agrees that the plaintiff was a business invitee of the defendant, or even a licensee, as a matter of law, a genuine issue of material fact exists as to whether the duty was breached. The defendant would owe the plaintiff a duty of care as a business invitee or a licensee to, at least, warn of known dangerous conditions, and refrain from creating or subjecting one to dangerous conditions.
The defendant relies on the plaintiff's certified deposition testimony as evidence that the plaintiff is uncertain as to the specific defect that caused her to fall and, therefore, the defendant could not have had actual or constructive notice of a specific defect. (See Defendant's Memorandum of Law in Support of Motion for Summary Judgment Ex. A, pp. 50, 51, 53, 68, 71-71.) The defendant asserts that this testimony conclusively shows that the plaintiff cannot maintain her premises liability case and, therefore, there are no genuine issues of fact and judgment should be entered as matter of law.
The defendant relies on Boretti v. Panacea Co., 67 Conn.App. 223, 786 A.2d 1164 (2001) cert. denied, 259 Conn. 918, 791 A.2d 565 (2002) and Monahan v. Montgomery, 153 Conn. 386, 216 A.2d 824 (1996), whereby the Appellate Court and Supreme Court, respectively, affirmed the trial court's denial of the defendant's motion to set aside a verdict and the denial of the defendant's motions for directed verdict, for judgment nothwithstanding the verdict and to set aside the verdict, respectively for the proposition that the plaintiff has to prove the existence of and notice to the defendant of a specific defect. The facts in this case, however are distinct from Boretti and Monahan . Unlike Boretti and Monahan, the present case is in the preliminary stages of trial, discovery is still in progress, and a jury selection date was not set until after this motion for summary judgment was heard. Furthermore, " [o]n a motion for directed verdict . . . the burdens imposed on the parties are different. Indeed, although it is the plaintiff's burden at trial to establish constructive notice . . . that is not so at the summary judgment stage. Notice is simply an additional element required to show a breach of duty when negligence is alleged under a theory of premises liability . . . Notice must be negated like any other element before the defendant may be entitled to summary judgment . . . Fundamentally then, in order to succeed on a motion for summary judgment, it is the defendant, not the plaintiff, who must affirmatively establish that they did not have actual or constructive notice." (Citations omitted; emphasis in original; internal quotation marks omitted.) Lussier v. Sun Valley Camping Cooperative, Inc., Superior Court, judicial district of Tolland, Docket No. CV 13-6006595-S, (April 23, 2014, Mullins, J.)
This action is similar to the Appellate Court's decision in Mott v. Wal-Mart Stores East, LP, supra, 139 Conn.App. 632, in which the court reversed a judgment granting the defendant's motion for summary judgment in a case with a very similar procedural history as this case. In Mott, the plaintiff initiated an action for injuries he suffered when he fell in an area owned by the defendant. Id., 620. The plaintiff alleged that his injuries were the result of the defendant's failure to maintain the area in a reasonably safe condition. Id. The defendant offered evidence, including the plaintiff's deposition transcript, and stated in its motion for summary judgment that it was " readily evident" on the basis of the evidence that he provided, and the lack of evidence provided by the plaintiff, that the plaintiff could not prove his case. Id., 621. In Mott, like this case, the plaintiff did not file any documentary evidence in support of his opposition to the defendant's motion for summary judgment. Id., 622-23. The trial court granted summary judgment on the basis that the plaintiff failed to provide any evidentiary foundation to oppose the motion for summary judgment. Id., 623. The Appellate Court reversed and explained that " [i]n its motion for summary judgment, the defendant stated that the outcome of the present case turns on the disputed issue of the defendant's actual or constructive notice of the alleged defect. The defendant asserted that the plaintiff 'simply cannot offer any evidence that the [d]efendant had notice of the defect that caused his injury, namely, ice in the area where the [p]laintiff fell. To prevail on a motion for summary judgment, however, the defendant had an obligation to negate the factual claims as framed by the complaint. To that end, it was incumbent on the defendant to provide the court with more than its belief that it was 'readily evident' that the plaintiff ultimately would be unable to meet his obligation at trial to produce evidence to prove that the defendant had actual or constructive notice of the alleged defect. In other words, before the plaintiff had acquired any obligation to produce evidence that would tend to show that the defendant, in fact, had notice of the defect, the defendant had the burden of producing evidentiary support for its assertion that its lack of notice was an undisputed fact." Id., 628. In Mott, the defendant failed to provide an affidavit or other evidence averring that it lacked knowledge of or notice of the defect. Id., 629. Similarly, the plaintiff was not asked at his deposition any questions from which one could deduce that the defendant did not have notice. Id., 631. To that end, the court determined that, " the deposition testimony of the plaintiff alone cannot be read as negating, as a matter of law, the issue of notice. Even assuming that the plaintiff faces a difficult challenge in ultimately proving its case at trial, that assumption cannot form the basis for granting a motion for summary judgment. So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his [or her] day in court unless it is clear that no genuine issue of fact remains to be tried . . . A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering that last rites by granting summary judgment." (Internal quotation marks omitted.) Id.
Although the defendant's arguments may ultimately prove correct at trial, it is not usually the plaintiff's burden to prove the existence of a specific defect or notice of said defect until trial. At this time and for the purpose of this motion for summary judgment it is the defendant's initial burden to show that no genuine issue of fact exists. Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 319-20. The court finds that the defendant has not met its initial burden of negating the essential elements of this premises liability claim so that he may be entitled to judgment as a matter of law. The plaintiff alleges in her complaint that she fell on the defendant's premises as a result of a defective expansion joint. To defeat the plaintiff's allegations, the defendant must submit evidence that the alleged defective condition did not exist on its premises, did not cause the plaintiff's fall, that the defendant did not take any affirmative action in creating the defect, and had no actual or constructive notice of the alleged defective condition. In the deposition transcript provided by the defendant, the plaintiff testified that she fell " between Franco's and Olympia" because something caused her to " stumble and fall" forward. (Defendant's Memorandum of Law in Support of Motion for Summary Judgment, Ex. A, pp. 50-53, 68, 71-73.) This deposition testimony provides enough circumstantial evidence to raise a genuine issue of fact as to the existence of defective condition. See Perrone v. Sutfin, supra, Superior Court, Docket No. CV-10-6007487-S (denying summary judgment whereby plaintiff could not identify specific defect but testified that he fell on something slippery, and the court found that " the circumstantial evidence submitted by the plaintiff in his deposition testimony provides a basis from which the causal sequence may be inferred" [internal quotation marks omitted]). Moreover, the defendant has not presented any evidence regarding the ownership of the premises, inspection of the premises, maintenance of the premises, lack of a defective condition, lack of actual or constructive notice, and not having taken any affirmative action in creating the expansion joint. Therefore, the defendant has not shown that there are no genuine issues of material fact in this case and is not entitled to judgment as a matter of law.
IV. CONCLUSION
For the foregoing, reasons, the motion for summary judgment is denied.