Opinion
FSTCV166029324S
03-05-2018
Roxanne LUNNEY v. The TAUBMAN COMPANY, LLC
UNPUBLISHED OPINION
POVODATOR, J.
Nature of the Proceeding/Procedural Background
This is a personal injury action in which the plaintiff claims to have fallen due to an unreasonably dangerous condition of the premises owned and operated by the defendant. In particular, the plaintiff claims to have slipped and fallen on an unreasonably slippery area near the bottom of a ramp leading to an underground parking garage, associated with a shopping center/mall owned and operated by the defendant. In part, the claim is that the paint used to provide markings in the parking garage created an unreasonably slippery condition when wet, and the plaintiff was caused to fall because of that unreasonably slippery condition on the date of the incident in question (a day on which it was and had been raining).
The defendant has moved for summary judgment, on two bases: " 1) Plaintiff has failed to disclose an expert in support of the allegations alleged in the complaint and/or 2) Plaintiff has failed to present evidence the defendant had notice of the allegedly defective condition and failed to take reasonable steps to remedy the condition after such notice."
The clause " and failed to take reasonable steps to remedy the condition after such notice" actually appears to be undisputed, for purposes of this motion. The defendant has made no attempt to suggest that any corrective action was undertaken, essentially an inherent consequence of the position that it did not know of any condition needing remediation (and/or the implicit claim that there was nothing in need of remediation).
Subsequent to the filing of the motion for summary judgment (in turn, after the granting of a motion for permission to file such a motion for summary judgment), the plaintiff disclosed an expert (updated, after argument on this motion, by an amended disclosure of expert). Despite the disclosure, the defendant has persisted in claiming that it is entitled to summary judgment based on the perceived insufficiency of the expert disclosure (as well as the notice issue).
Legal Standards
Except as particular aspects are required for context, the court will not recite the well-established standards for summary judgment.
See, e.g., Costa v. Board of Education, 175 Conn.App. 402, 406-07 (2017); Wells Fargo Bank, N.A. v. Henderson, 175 Conn.App. 474, 481 (2017).
The requirements for establishing legal responsibility in connection with maintenance and control over property- especially commercial property- also are well-established:
The relevant principles of premises liability are well established. 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 condition 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." (Internal quotation marks and citations, omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116-17, 49 A.3d 951, 957 (2012).
Discussion
1. Need for Expert Testimony/Disclosure
The defendant contends that the plaintiff cannot prove her case, as a matter of law, absent supporting expert testimony, and at the time of the motion, the plaintiff had not disclosed an expert. In support of its claim, the defendant has cited and relied upon Brye v. State, 147 Conn.App. 173, 81 A.3d 1198 (2013). In its broadest sense, the decision stands for the unremarkable proposition that an expert is required with respect to matters beyond the knowledge (" ken" ) of the average factfinder/juror- the justification for use of an expert in the first instance. Focusing on this case in particular, the issue reduces to the question of whether the potential slipperiness of painted lines (when wet) is a matter of common knowledge, with a related issue as to the sufficiency of the later-disclosed expert opinion to address that matter, should an expert be deemed required for that purpose.
As to the need for, or scope of, expert testimony, there also is a need to consider a substantive second issue, essentially a variation on the second issue raised by the motion for summary judgment, concerning the proper scope of the claimed defective condition. In other words, in determining whether an expert opinion is required, is the proper focus on the existence of a painted line, or the painted line only when it is wet, or the propensity for a painted line, when wet, to be or become slippery?
Addressing the merits of the expert-based aspect of the defendant’s argument, the court cannot help but note that Brye was a post-trial determination, retrospectively noting the absence of needed evidence, considering all evidence actually presented during the trial:
On the basis of the evidence presented at trial, the court concluded, in relevant part, that expert testimony was necessary to determine whether the state breached the standard of care in installing one-quarter inch plywood over the lighting pit. We agree with this conclusion. 147 Conn.App. 183.
Further, the specific issue in Brye was the structural integrity of plywood of a specific thickness, as a cover for a hole (of a particular size) in a surface upon which people walked. The characteristics of plywood, as a surface on which an individual might walk, has a materials-engineering quality to it, not present here. Further, absent a full record as to what the disclosed expert would/might say at trial, the court cannot determine the adequacy of the expert testimony, to the extent it might be needed, and absent a full presentation of evidence, it is difficult to determine whether it is needed at all. (The plaintiff has testified as to the extreme slipperiness of the surface as she stepped on it, comparing it to ice; is there a need for expert corroboration, or is that not generally sufficient to " get to the jury" with respect to the unreasonableness of the condition?)
Although not discussed, the size of the hole being covered and the presence or absence of any support would also be considerations- plywood sufficiently thick to cover a 4-inch round hole might be woefully insufficient to cover a 24-inch round hole (with intermediate and/or irregular shaped openings requiring individual evaluation).
The court added " to the extent it might be needed" to a sentence in the above paragraph, based on another case cited to the court by the defendant, DiPietro, supra . A recitation of the procedural history is necessary to understand the proper application (if any) of DiPietro to this case.
The trial court granted the defendants’ motions for summary judgment on two principal bases. First, the court held that expert testimony was required to establish the standard of care applicable to an indoor soccer facility, and second, that the plaintiff had not produced evidence that the defendants had notice of the alleged hazardous condition. Noting that " only the defendants have provided evidence of the standard of care and the lack of notice about the alleged, dangerous defect," the court concluded that the plaintiff had failed to establish genuine issues of material fact on essential elements of her premises liability claims. 306 Conn. 114.
The matter was then appealed to the Appellate Court, which reversed the trial court. Again, quoting from the Supreme Court decision:
The Appellate Court reversed the trial court’s summary judgments rendered in favor of the defendants. Reasoning that the plaintiff’s claims " [rest] on the rules of law applicable to premises liability in which the law itself imposes the standard of care, namely, the duty to provide and to maintain premises in a reasonably safe condition," the Appellate Court concluded that expert testimony was not necessary on that issue. DiPietro v. Farmington Sports Arena, LLC, supra, 123 Conn.App. at 619, 2 A.3d 963. In regard to notice, the Appellate Court reasoned that " there was no need for the plaintiff to prove notice of the unsafe condition because the defendants were responsible for creating the unsafe condition." Id., at 621, 2 A.3d 963. 306 Conn. 114-15.
On appeal, the Supreme Court reversed the decision of the Appellate Court. Initially, the issues certified for appeal related to the issue of notice and the need/use for expert testimony. The precise issues initially certified for appeal were:
1. Did the Appellate Court properly rule that expert testimony was not required in a negligence case wherein the plaintiff claimed that the defendants had installed an inherently dangerous carpet in its indoor soccer arena, and where there was no evidence that the defendants had notice of the danger?
2. Did the Appellate Court properly rule that plenary review applied to the trial court’s decision concerning the admissibility of expert testimony in a summary judgment motion? DiPietro v. Farmington Sports Arena, LLC, 299 Conn. 920, 10 A.3d 1053 (2010).
These issues were recited in the substantive decision, in footnote 2, with the added recitation that the court had chosen to reformulate the first issue. Of more importance is that in that same footnote, the court also indicated that it was not going to address the issue relating to expert testimony. Conversely, that second issue related to " admissibility of expert testimony in a summary judgment motion" rather than the need for expert testimony. Footnote 3, however, addressed the expert testimony issue in detail, in a manner relevant here:
Intertwined with the defendants’ argument that notice is lacking is a claim that the Appellate Court improperly reversed the trial court’s summary judgments because the case required expert testimony on the standard of care as to indoor soccer surfaces, and the plaintiff’s expert could offer no opinion in this regard, but only as to the cause of Michelle’s injury. We agree with the Appellate Court that the standard of care in any premises liability action is defined generally by law as the duty " to keep [the] premises in a reasonably safe condition" ; Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002); and, therefore, that expert testimony is not required to establish it. This duty is bounded, however, by the traditional requirement that a defendant must have actual or constructive notice of a dangerous condition on its premises before being required to remedy it. Notice can be proven in a number of ways, including by expert testimony as to what the defendant ought to have known. As we explain hereinafter, because the plaintiff did not produce any evidence on the essential element of notice, expert testimony or otherwise, her premises liability actions cannot survive summary judgment in the defendants’ favor. 306 Conn. 115 n.3.
Thus, the Supreme Court decision does not stand for the proposition that expert testimony is necessary for premises liability cases generally; rather, it indicates that in most instances it is something that may be used to assist in establishing elements of a premises liability case, including standard of care and notice- but the court did not say it was necessary to have expert testimony (or even that it usually was necessary).
Here, aside from the questionable a priori need for an expert as discussed above, there is the overlay that an expert has been disclosed. Although there have been issues relating to sufficiency of disclosure- including, in the initial disclosure, a recitation of an attached opinion which apparently did not exist at the time- the sufficiency of an opinion that has been summarized in an expert disclosure is not conducive to review by summary judgment. If the expert opines that the painted surface was unreasonably slippery at the time of the accident, what more- other than details- needs to be said?
In effect, the defendant contends that an expert is needed to explain why the area was unreasonably slippery. This was not an unusual surface such as a soccer field (artificial turf); this was an area intended for pedestrians/customers, and while it might be helpful to understand the cause of the claimed unreasonable slipperiness, the " why" itself is not an element of the cause of action. " Why" might inform an assessment of unreasonableness, constructive notice, ability to discover with reasonable inspections, etc., but the burden is to establish an unreasonable condition, notice (actual or constructive) and a failure to correct.
Given all of these circumstances, the defendant has not established that the plaintiff cannot establish any element of her cause of action without an expert, as a matter of law, and has not established the inadequacy of the expert disclosure.
2. Notice
The discussion, above, identifies/recognizes a starting point for the claim of lack of notice. In this case, there is a threshold inquiry or issue: defining the defect itself. Is the defect the painted line which would become slippery (or more slippery) when wet, or was it the painted line only when/while it was wet?
After approximately one full page in which the standards and legal principles are recited, the defendant, in its initial brief, sets forth the entire argument relating to notice in such a brief manner that it can be reproduced in its entirety.
The first issue is that plaintiff has failed to even allege the specific defect that caused her injury. The Complaint is void of specifics but appears to be from the deposition testimony that something was defective about the yellow painted line on the parking lot surface.
Second, even if a specific defect was alleged about the paint or its application to the surface, a visual inspection to the Defendant would not have revealed the supposed dangerousness unlike visible conditions such as floor debris; Morris v. King Cote Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710 (1946); or deteriorated railings; Kirby v. Zlotnick, 160 Conn. 341, 345, 278 A.2d 822 (1971); which put a premises owner with enough time to discover and remedy the condition on constructive notice of that condition. See DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107 (2012). Plaintiff has failed to present any evidence that the Defendant had actual notice or constructive notice of the supposed specific defect.
WHEREFORE, the Defendant moves that the court grant this Motion for Summary Judgment.
Thus, the defendant starts by suggesting that the lack of precision in the complaint in identifying " the specific defect" is a possibly-fatal defect in her claim. They cite no authority for that proposition, and to the extent that such a potentially-curable deficiency might exist in the complaint, that implicates the concerns expressed in Larobina v. McDonald, 274 Conn. 394, 404-05 (2005). This seems to revert back to the identification of the defect, but the defendant has not explained why the extremely slippery nature of the painted line, as described by the plaintiff, is not sufficient, especially for purposes of pleading. Further, to the extent that the defendant identifies the claimed uncertainty of the plaintiff as to whether she saw water or whether the painted line was wet at the time of her fall, there appears to be no real question that it was the combination of painted line and water that is claimed to have created the extraordinarily slippery condition. The defendant has not presented an argument that the paint was dry and therefore the surface was not unreasonably dangerous, and the court is limited to the arguments actually advanced by the moving party; Greene v. Keating, 156 Conn.App. 854 (2015).
Note that the defendant’s position does not seem to improve if it were to be assumed that there was no water involved, and that the painted line was dry, at the time of the fall. Regardless of presence of water, the plaintiff described the area by comparison to ice; if a painted (dry) surface is as slippery as ice, that is still a dangerous or defective condition- except that it would not be a possibly-variable condition, dependent on presence of water. Instead, it would have been a constant condition, at least since the last annual painting of lines and perhaps back to when the current garage configuration was established in approximately 2007.
The second part of the defendant’s argument appears to be that any defect must be readily observable, in order for notice to exist. Would a visual inspection have revealed the defect in Brye (inadequate thickness of the plywood covering a hole)? The apparent need for expert testimony in that particular situation strongly suggests that whether a dangerous condition is readily observable is not and cannot be the determining factor. Are property owners immune from liability due to latent or hidden defects in the premises? Cf. Mendez v. Rojas, LPL-CV-98-0166419S Superior Court of Connecticut (January 24, 2000) (denying motion to strike negligence claim against landlord, characterizing the lead paint used on the premises as a latent defect). To the contrary, a landlord who leases property to a tenant and therefore is presumed to have surrendered control of the property, may still be liable for hidden/latent defects that it would not be reasonable to expect the tenant to discover and correct; Oliveira v. Jensen, J.D. Hartford, HHDCV136045373S, (December 7, 2015). The extent to which a defective condition was visible or obvious may be a factor in determining notice and especially reasonableness of inspections, but it is not inherently determinative.
In the reply, the defendant more directly challenges the plaintiff’s belatedly disclosed expert and his opinions. A motion for summary judgment, however, is not the proper mechanism for challenging a belatedly disclosed expert and determining whether the late disclosure violated discovery rules (Practice Book § 13-4). Similarly, a motion for summary judgment is not the proper mechanism for challenging the sufficiency of the disclosure, especially in the absence of establishing the threshold requirement that there must be an expert as a condition to viability of a cause of action (such as in medical malpractice cases).
In considering a sanction for late disclosure, before ordering preclusion, a court generally must consider whether an alternate remedy such as a continuance might cure any prejudice to the adversary. See, e.g., Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 47, 830 A.2d 240 (2003). Again, summary judgment is not intended to be a dispute-resolution process but rather an issue-identification process, such that the court cannot adjudicate timeliness of disclosure and the appropriate remedy for claimed late disclosure, in this framework.
The remainder of the reply attempts to address the issue of notice. Part of that argument challenges certain testimony of Mr. Labbadia, the principal of the company that did the line-painting for the defendant. The fact that the company no longer was a defendant at the time of the deposition does not, in and of itself, explain why the court should disregard his testimony. Some of his testimony might well be considered inadmissible opinion, but some of it would appear to be factual in nature, e.g., his statement that the paint that his company used to paint the lines did not, to his knowledge, contain any abrasive material.
Much of the remainder of the argument presented by the defendant inverts the burden of proof for summary judgment. For example, the defendant questions whether there was an obligation to have abrasive material in the paint- and seems to assume that that relates solely to notice rather than the existence of a dangerous condition. Identifying unresolved issues may point to problems the plaintiff will encounter at trial, but that does not address the defendant’s goal in this motion. The burden on the defendant is to establish the absence of issues, not identify unresolved issues. The complaint alleges that the defendant " failed to provide a safe, nonslip surface to walk on" and the absence or presence of abrasive material is at least relevant- and the defendant’s contention that there is no obligation to provide for such abrasive material in the paint would be an appropriate response, creating an issue for the jury to determine.
The defendant also continues to argue the weight of evidence available from the plaintiff, rather than establishing the certainty of its position. The plaintiff did not recall running water on the ground, she did not recall if the floor area was wet, etc.; putting aside the fact that the plaintiff has pointed to other evidence that, while perhaps not conclusive or definitive, does support the plaintiff’s position that the area was wet (including a photograph taken shortly after the fall, claimed to show that the area was wet), a level of uncertainty in excerpts from the plaintiff’s testimony is not affirmative proof of the negative- which is the burden on the defendant at this time. The defendant does not address the knowledge of the plaintiff’s three companions- at her deposition, the plaintiff only stated that she did not see/believe that any of them had inspected/examined the scene immediately after her fall, but to the extent that the defendant is trying to establish absence of evidence, some direct measure of their knowledge would seem to be needed. (The court assumes that it was inadvertent when, in attempting to distinguish cases cited by the plaintiff on the last page of the brief (other than signature lines), the defendant attempted to distinguish claimants in cases cited by the plaintiff from " the Plaintiff in the subject case who maintains that the area was not wet." The court does not believe that the defendant has identified any affirmative statement by the plaintiff to the effect that " the area was not wet." )
See, also, footnote 4 above, noting that if the area were unreasonably slippery but dry, the defendant would not benefit with respect to the issue of notice, the issue that is the focus of the motion. (Slippery but dry might present a difficult scenario for the plaintiff to prove, but that is beyond the scope of this motion.)
The court will now return to what it believes to be the proper analysis.
In Hennessey v. Hennessey, 145 Conn. 211, 216, 140 A.2d 473, 476 (Conn. 1958), although focusing on the plaintiff’s conduct, the court noted the complementary nature of such conditions:
The jury could find that the plaintiff, at the time she fell, did not know that the floor was waxed. Since it was not merely the water on the floor which created the dangerous condition but the water superimposed on the wax, the jury would be justified in finding that the defendant could not reasonably assume that the plaintiff either knew of the dangerous condition or by the reasonable use of her faculties would become aware of it.
In a case that is a bit closer to the present one, the court stated: " The continuous rain with pedestrian traffic coming into the store was sufficient to put the defendant on notice that water would be tracked in and deposited on the floor." Fragoso v. Stop & Shop Companies, Inc., No. 099317, 1991 WL 231567, at *1 (Conn.Super.Ct. Oct. 31, 1991) . The same would seem to be true for the area of a parking garage near the entrance, at the bottom of a sloped ramp, with cars driving into the garage with water dripping from the cars as would/should be expected (in addition to the possible direct flow of rain down the ramp). If the plaintiff were to be believed, that the wet painted line was exceedingly slippery, then unless the defendant were to argue that this was the first time that the wet paint was slippery, the condition would have existed almost countless times prior to the plaintiff’s fall (going back to 2007, based on the defendant’s testimony that the current configuration dates back to that year), and the defendant could be deemed to have had a sufficient opportunity to know of the risk to be on notice that something might need to be done.
Although it is a decision based on the municipal highway defect statute (General Statutes § 13a-149), Prato v. New Haven, 246 Conn. 638 (1998) is instructive. In that case, the court noted that highway defect claims are similar to premises liability claims (if sometimes narrower/stricter in application, given the policy behind governmental immunity) and borrow principles from common-law negligence. The court noted that there was a common-law duty for property owners to inspect their property for dangerous conditions, and also noted that a failure to do inspections could be sufficient to allow a determination of notice (" negligent ignorance of a defect may support a finding [of constructive notice]" (246 Conn. 645) ). In so doing, the court cited Hall v. Burns, 213 Conn. 446, 479 (1990), in which case the court used language directly applicable here:
A possessor of land is charged with constructive notice of the dangerous condition when it is of such a nature and duration that a reasonable inspection would have disclosed the risk ... Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant ... Therefore, when a possessor of land fails to make or to have made a reasonable inspection which would have disclosed the dangerous condition, his negligent ignorance is, in the eyes of the law, equivalent to actual knowledge. (Emphasis as in cited case.)
As with common-law negligence, there is a requirement under the statute for the condition to have existed for a sufficient period of time to allow for the defendant to learn of its existence, and while 90 seconds was deemed to be inadequate in Prato, the court explicitly noted that a longer period of time would create a factual issue. Here, there is evidence of rain falling for approximately 2 hours (if not more) prior to the plaintiff’s fall.
The court often notes the asymmetry between summary judgment and trial. Here, the context is not a trial in which the plaintiff would have the burden of proof (preponderance of the evidence); this is a motion for summary judgment in which the defendant has the burden of disproof (proof of absence of material issue of fact as to entitlement to judgment). The defendant must prove that the defendant had no notice, constructive or actual. In order to sustain that burden, however, the defendant would have the burden of showing that the condition existed for an inadequate period of time for it to have had notice, assuming that it was the combination of water and the painted line that constituted a new defective condition, each time it arose. The issue of adequacy of inspections also would need to be addressed, and the defendant has offered no evidence of any inspections relating to the effect of water on conditions in the parking garage and associated walkways.
One moderately-distinguishing factor in this case is that the defendant bears responsibility for the existence of the painted line itself. In other words, this was not a purely natural condition such as ice or snow falling, nor is it the consequence of randomness such as sand or debris blowing around or a pothole developing due to freeze-thaw cycles. The defendant caused the line to be painted, and caused it to be repainted at regular intervals.
With respect to the issue of inspections, or other forms of notice, the defendant simply states that it had no notice of any prior incidents. There is no indication of any affirmative efforts to investigate whether the painted surface was slippery, with or without water, and the plaintiff has submitted evidence indicating that the lack of notice of any possible prior incidents was due to the compartmentalizing of functions- complaints would be handled by a security company, but incidents of this nature would not be reported to management (according to the defendant’s property manager). The court already has cited authority for the proposition that a failure to conduct inspections can give rise to a finding of negligence; so too can structuring reporting of incidents in such a manner that reports of this type of accident (slip and fall due to slippery surface) would never come to the attention of appropriate management personnel.
Returning to constructive notice, the painted lines, according to the evidence presented to the court, were repainted regularly, and the garage (with painted lines) apparently has existed for a number of years (with the current configuration dating back to 2007). If the lines, especially when wet, were particularly slippery (as claimed by the plaintiff by virtue of her experience), then it would appear to be a factual issue as to whether the condition- whether the painted lines inherently or the recurring wet painted lines whenever it rained (or snowed)- existed for a sufficient period of time that the defendant should have been aware. For example, assuming that the dangerous condition required the presence of water, the defendant has not offered evidence suggesting that the rain had just started when the plaintiff fell, such that there was an inadequate time to learn of the problem and remedy the condition; the plaintiff has testified that rain was falling two hours before this incident and that it still was raining immediately before she fell. Duration and intensity appear to be issues that will need to be addressed, but any uncertainty cannot be resolved via summary judgment.
Indeed, the defendant has attempted to engraft a greater burden on the plaintiff here than in " routine" slippery-floor cases. There is no requirement of notice of prior incidents, and there is no requirement of actual knowledge; often, the evidence is simply a fall with an inference from available evidence that the condition had existed for a sufficiently-long period of time prior to the incident at issue that the defendant should have discovered or known of the condition. As suggested by Prato, while predictability of a dangerous condition is not the same as notice of the actual existence of a dangerous condition, predictability at least suggests a possible obligation- in the exercise of due care- to investigate when the circumstances suggest that the dangerous condition may have come into existence. There may be a justifiable lesser concern about inspecting for wet surfaces on a sunny day than on a rainy day (with possible exceptions, such as certain aisles of a grocery store), but that is but a specific instance of the notion that the duty is commensurate with the risk.
See, e.g., Connecticut Judicial Branch Civil Jury Instructions, § 3.6-4 Reasonable Care: " It is common sense that the more dangerous the circumstances, the greater the care that ought to be exercised." (http://www.jud.ct.gov/JI/civil/Civil.pdf (as of 3/1/2018).)
In Considine v. City of Waterbury, 279 Conn. 830, 872-73, 905 A.2d 70, 97 (2006), the Supreme Court reviewed the parameters for the time required for notice to be a factual issue, as identified in a range of cases:
Compare McCrorey v. Heilpern, 170 Conn. 220, 222, 365 A.2d 1057 (1976) (concluding that there was no reasonable basis for jury’s finding of constructive notice because plaintiff proffered no evidence that defective condition existed for any period of time before plaintiff’s injury), White v. E&F Construction Co., 151 Conn. 110, 113-14, 193 A.2d 716 (1963) (evidence that defective condition existed for two minutes before accident was insufficient to charge defendant with constructive notice), and Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 522, 615 A.2d 1087 (concluding that trier of fact could not find constructive notice because plaintiff offered no evidence that defect existed for any period of time), cert. denied, 224 Conn. 923, 618 A.2d 527 (1992), with Kirby v. Zlotnick, 160 Conn. 341, 345, 278 A.2d 822 (1971) (concluding that there was sufficient evidence of constructive notice where defective condition of porch railing, which caused plaintiff’s injuries, existed for at least two weeks), and Kurti v. Becker, 54 Conn.App. 335, 339, 733 A.2d 916 (concluding that defendant had constructive notice of defect because three hours was sufficient period of time for defendant to have discovered that ice formed on driveway and to have warned invitee or remedied situation), cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999). Accordingly, we conclude that the plaintiff proffered sufficient evidence from which the trial court properly could have found that the defendant had constructive notice of the hazard posed by the use of annealed glass in the entryway of the clubhouse.
Again, at trial, the burden will be on the plaintiff to establish that the condition- however described- existed for a sufficient period of time that, under the circumstances, the defendant was charged with constructive notice of the existence of the slippery condition described by the plaintiff, and should have addressed it. As already noted, the plaintiff claims that it had been raining when they arrived at the restaurant two hours before her fall and that it was still raining when they left the restaurant. The defendant will have the ability to contest duration, and contest the existence of a condition that was dangerous and in need of remediation. Now, however, the burden is on the defendant to establish the brevity or non-existence of a dangerous condition such that there was an inadequate opportunity to learn of the condition, or otherwise negate the existence of notice, but in trying to establish their right to judgment, the defendants cannot ask the court to resolve any factual dispute via summary judgment.
Conclusion
It often is said that negligence cases are ill-suited to disposition by way of summary judgment. Strycharz v. Cady, 323 Conn. 548, 569, 148 A.3d 1011, 1024 (2016); Busque v. Oakwood Farms Sports Ctr., Inc., 80 Conn.App. 603, 607, 836 A.2d 463, 465 (2003). Issues that do not require resort to evaluating reasonableness or do not rely on permissive inferences are generally better suited; that is why an applicable statute of limitations, or the availability of governmental immunity for certain functions, or the lack of any cognizable duty, can more readily form a basis for summary judgment. Here, the defendant relies on claimed lack of constructive notice, which usually is based on a weighing of the circumstances- should the defendant have known of the dangerous condition, if it had exercised reasonable care, based on the facts presented at trial? Only if there is one possible result, e.g., as a matter of law, 90 seconds between creation of a dangerous condition and the resulting injury is insufficient to allow a finding of notice, can summary judgment be granted.
The defendant has not established that an expert is essential to the plaintiff’s case, and has not established that if an expert is essential, the expert (arguably-belatedly) disclosed is insufficient. It has not established to the requisite level of certainty (no material issue of fact) that it is not chargeable with notice, either based on the specific occurrence or based on the regular presence of the painted lines that they created and maintained over an extended period of time in the presence of ongoing or recent rain. (The defendant has not negated much less conclusively negated the testimony that there had been rain for two hours or more, prior to the accident.) Equivocal answers from a plaintiff are not the same as unchallenged affirmative statements, in terms of meeting the burden of establishing " what the truth is" (Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015) ), a useful formulation of the burden on the moving party in connection with summary judgment.
As noted earlier, if the contention is that there is no evidence that the painted lines were wet, then the issue is notice of slipperiness of the paint without any water present. There is no suggestion much less evidence of some other foreign substance on the painted lines.
For all of these reasons, the motion for summary judgment is denied.