Opinion
No. NNH CV-09-5031149 S
October 12, 2011
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (135.00)
FACTS:
In her amended complaint (115.00), the plaintiff, Antoinette Puma, alleges that she sustained injuries and damages when she fell outside the entrance of an Xpect Discounts store. She has brought this action against defendant Marc Glassman, Inc. d/b/a Xpect Discounts, which operated the store (Count One); three defendants which allegedly owned or controlled the property, C.W. Milford, LLC (Count Two), GM Richetelli Investment Trust (Count Four) and KRT Property Holdings, LLC (Count Five); as well as a defendant which allegedly managed the property, Centro Watt Management Joint Venture 2, L.P. (Count Three).
The allegations against Marc Glassman, Inc. in Count One utilize terms such as "self-service retailer" (¶ 6) and "self-service mode of operation" (¶ 10a.). However, these allegations are not asserted against the other four defendants. The allegations against these defendants in Counts Two through Five are identical. The plaintiff claims that, while examining some flowers on display on the sidewalk, she tripped and fell in front of the display.
It is unclear whether the plaintiff is asserting a mode of operation claim against Marc Glassman, Inc., as she additionally alleges that this defendant had actual and constructive notice.
The plaintiff alleges that these defendants allowed Mark Glassman, Inc. "to display and sell flowers on the sidewalk in front of its store, thereby covering a significant portion of the sidewalk, in an area where the sidewalk was sloped, and reducing the available walking area, which created a foreseeable risk of danger and injury, including tripping and falling, to customers such as the plaintiff, while their attention was focused on the display."
In addition to the allegation that these defendants allowed Marc Glassman, Inc. to create an unsafe condition on the sidewalk, the plaintiff further alleges that the defect in the sidewalk had existed for a significant portion of time and these defendants failed to maintain the sidewalk in a safe and reasonable manner. The plaintiff does not assert that this alleged defect caused her to trip and fall.
These four defendants, excluding Mark Glassman, Inc., have moved for summary judgment on the basis that the plaintiff is unable to identify a defect which caused her fall. The plaintiff has objected to the motion, asserting that, based on her testimony and the allegations of the complaint, there exist genuine issues of material fact and that the defendants have failed to meet their burden of proof. Oral argument was presented on October 3, 2011.
LEGAL STANDARD:
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." Practice Book § 17-49. In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party. Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact that will make a difference in the result of the case . . ." (Internal quotation marks omitted.) Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2 777 (2006).
"A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). 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 issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[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." (Internal quotation marks omitted.) Id., 752. "[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." Id.
"A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "[T]he `genuine issue' aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Id., 378-79. "Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Internal quotation marks omitted.) Id.
ANALYSIS
The defendants assert that they are entitled to summary judgment because the plaintiff cannot identify a defective condition that existed on the defendants' property that caused her fall. "The plaintiff [bears] the burden of proffering some evidence, either direct or circumstantial, from which [a] jury could infer that the defect she allegedly encountered existed for a length of time sufficient to put the defendant on actual or constructive notice of its existence." Columbo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 64, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002).
Typically, for a plaintiff to recover for the breach of a duty owed to her as an invitee, it is incumbent upon her to allege and prove that the defendants either had actual notice of the presence of the specific unsafe condition which caused her injury or constructive notice of it. The 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. Kelly v. Stop Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).
In the counts directed against these four defendants, the plaintiff has alleged both active and constructive notice. Although the plaintiff alleges that there was a defective condition which would pose a foreseeable risk for tripping and falling and she alleges that she tripped and fell, the plaintiff does not allege that the defective condition caused her to trip and fall.
The defendants have submitted evidence that the plaintiff has no knowledge as to the cause of her trip and fall, which consists of excerpts of the transcript from the plaintiff's deposition. In describing what happened, the plaintiff testified, "I noticed that there were flowers in . . . a stand on the sidewalk and I wanted to go look at them and that's where there was an incline, like, and right there I hit something and fell." (Transcript of the deposition of the plaintiff, May 13, 2011, p. 14.) When asked if she knew what she hit, the plaintiff replied, "No. I hit something . . ." (Transcript, p. 16.) When asked if she knew what caused her to trip, the plaintiff replied, "No, I must have hit something because I tried so hard to keep myself up and then when I just couldn't, I just fell." (Transcript, p. 27.)
Both parties have submitted unauthenticated attachments to their respective summary judgment pleadings. The defendants have attached uncertified excerpts from the transcript of the plaintiff's deposition. The plaintiff has also attached uncertified excerpts from her deposition transcript as well as photocopies of photographs depicting the alleged defect. Neither side objected to the other's attachments. The court will consider these attachments, despite the mutual failure to comply with P.B. § 17-45. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
The plaintiff has offered no evidence rebutting the defendants' contention that she does not know what caused her to trip or what caused her to fall. In fact, although the plaintiff alleges a defect on the sidewalk, she testified that she fell before she got to the sidewalk. "I fell, but I fell just before I got to the sidewalk." (Transcript, p. 15.) She confirmed this later in the deposition. When asked again if she fell before she got onto the sidewalk, the plaintiff responded, "Yeah, yeah." (Transcript, p. 24.)
The plaintiff's assertions against the defendants are based upon a defective condition on the sidewalk. Even if there was a defect on the sidewalk as she alleges, the plaintiff testified repeatedly that she did not fall on the sidewalk.
"To recover under our current law, the plaintiff [is] required to prove that the defendant had had actual or constructive notice of the specific defect that caused the plaintiff's injuries." (Emphasis added.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 164, 914 A.2d 529 (2007)." James v. Valley-Shore Y.M.C.A, Inc., 125 Conn.App. 174, 178-79, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011). "A permissible inference rests upon premises of fact; conjecture does not." Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 446, 538 A.2d 690 (1988)."
In her objection, the plaintiff claims that the defendants caused her to fall by directing her attention to the flower display. In support of her assertion, the plaintiff cites a superior court decision which states, "A patron invited into a store to shop is expected, invited and even encouraged to browse amongst the goods and focus on the merchandise; that is why they are there and it is the very foundation upon which the store is in business . . . A store patron is not bound to see every hazard in her pathway, especially where the aisle is open for walking and not stocked with goods itself and particularly when her attention is attracted by the intentional display of merchandise . . ." (Citations omitted.) Mojica v. Sears, Roebuck Co., Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV89-264652 (September 17, 1991, Katz, J.) [ 4 Conn. L. Rptr. 820].
However, in Mojica, the plaintiff was able to identify the defect that caused her fall, a piece of wood in the aisle. Here, the plaintiff has failed to identify the defect which caused her to trip and fall. Moreover, the only defect alleged by the plaintiff in her complaint was a condition of the sidewalk, yet the plaintiff has testified that she did not trip and fall on the sidewalk, never reaching it before she fell.
A party must substantiate an adverse claim by specifically showing a genuine issue of material fact together with evidence disclosing existence of such issue. Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof . . . When a party files a motion for summary judgment and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).
The defendants have established that the plaintiff cannot identify what caused her to trip and fall. The plaintiff, herself, has denied her own allegation, that she tripped and fell on a sidewalk with a defective condition. The plaintiff has offered no evidence to rebut the assertion that the specific defect can be identified. There is no genuine issue of material fact. Summary judgment for these four defendants is appropriate.
ORDER:
The defendants' motion for summary judgment (135.00) is granted. The objection (140.00) is overruled.