Opinion
CV166029719
11-03-2017
Donald Schiff v. Strathmore Lane Condominium Association, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (NO. 119)
Hon. Charles T. Lee, J.
This case comes before the court on the plaintiff's motion for summary judgment as to liability only, on the ground that there is no genuine issue of material fact that the defendant was negligent in maintaining its property. As more fully discussed below, the motion for summary judgment is denied because genuine issues of material fact exist as to whether the defendant had notice of the defect which caused the plaintiff's injury.
Background
On September 7, 2016, the plaintiff, Donald Schiff, filed a one-count complaint sounding in negligence based on premises liability against the defendant, Strathmore Lane Condominium Association, Inc. The plaintiff alleges that, on November 21, 2015, he tripped on a large tree branch resting on the stoop outside his residence, causing him to fall and sustain injuries. The plaintiff claims the branch fell from a large birch tree overhanging his stoop, and that the defendant knew or should have known that the tree was not suitable for that location and had caused recurring hazardous conditions. The plaintiff further alleges that the defendant failed to act reasonably to prevent the hazardous conditions caused by the birch tree in one or more of seven enumerated ways.
On April 17, 2017, the plaintiff filed a motion for summary judgment as to liability only, to which the defendant filed an objection. The plaintiff filed a reply memorandum, and the defendant filed a surreply. The matter came before this court for oral argument on the July 10, 2017 short calendar.
Contentions of the Parties
The plaintiff argues that there is no genuine issue of material fact as to defendant's failure to provide reasonably safe premises because the defendant admitted responsibility for the maintenance of the tree and the stoop outside the plaintiff's residence. The plaintiff further contends that the defendant admitted that it was advised by arborists that the birch tree was excessive in size and scope for the location. The plaintiff also asserts that the defendant knew or should have known that the tree posed hazards based on complaints from unit owners and residents about the tree, as well as its actions in patrolling the grounds for safety hazards and hiring landscapers to remove hazardous tree debris. Finally, the plaintiff argues that " [c]ausation speaks for itself as to the Plaintiff's injuries." In support thereof, the plaintiff submits his own affidavit; the certified transcript from the deposition of Marie Hedy Mosier, the defendant's Board President; and the plaintiff's requests for admission served on the defendant. With regard to the requests for admission, there is no dispute that they are deemed admitted by virtue of the defendant's failure to respond.
Nonetheless, the defendant argues that, regardless of the admissions, there remain issues of fact as to whether it had notice of the specific condition or defect which allegedly caused the plaintiff's injury; whether it acted reasonably; and whether the plaintiff suffered injury as a result of the alleged incident. In support thereof, the defendant submits Mosier's deposition as well as certain of the plaintiff's medical records.
The plaintiff objects to the defendant's submission of uncertified medical records as inadmissible. The court has not considered these records in deciding this motion.
In reply, the plaintiff asserts, for the first time, that he does not need to prove actual or constructive notice because the defendant is liable under the " mode of operation" rule. According to the plaintiff, the manner in which the defendant undertook the maintenance of the grounds constitutes a mode of operation, and the placement of the subject tree in front of his condo unit along with its need for constant pruning, maintenance and cleanup created a foreseeable risk of recurring hazardous conditions. Further, the plaintiff argues that there is no genuine issue of material fact that the defendant did not act reasonably, as it neither removed the subject tree nor ensured that the area surrounding the tree was inspected and cleared with regularity. In its surreply, the defendant argues that the mode of operation rule is inapplicable to the present facts and allegations, but that, even if it is applicable, there are issues of fact relative to whether the defendant acted reasonably by employing landscapers and arborists to tend to the property.
Discussion
A. The Summary Judgment Standard
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " 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.) Id., 320. " The courts hold the movant to a strict standard. To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Id. " As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Id. " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Id. " Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Id.
B. The Mode of Operation Rule
The parties do not dispute that, as a business invitee, the defendant owed the plaintiff a duty to maintain the premises in a reasonably safe condition. " Typically, [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." (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007). " [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." (Internal quotation marks omitted.) Id. " 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 omitted.) Id. " If the plaintiff, however, alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof of notice is not necessary . . . That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof." (Internal quotation marks omitted.) Id., 777. " When, however, the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition, we have stated that " [t]he controlling question [becomes] that of constructive notice: whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it." (Internal quotation marks omitted.) Id. The plaintiff's complaint does not allege that an affirmative act by the defendant caused the subject branch to fall onto the plaintiff's stoop. The plaintiff's complaint does not allege that an affirmative act by the defendant caused the subject branch to fall onto the plaintiff's stoop.
The mode of operation rule is a narrow exception to the notice requirement, Porto v. Petco Animal Supplies Stores, Inc., 167 Conn.App. 573, 579, 145 A.3d 283 (2016), and its scope is informed by the particulars of the case in which it was adopted. Fisher v. Big Y Foods, Inc., 298 Conn. 414, 424, 3 A.3d 919 (2010). The rule was adopted in a case where a supermarket patron slipped and fell on a piece of lettuce that dropped from a self-service salad bar located in the store. Kelly v. Stop & Shop, Inc., supra, 281 Conn. 770. It " allows a customer injured due to a condition inherent in the way [a] store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition." (Citation and internal quotation marks omitted.) Id., 777. In adopting the rule, the Kelly court found that it was appropriate to hold self-service businesses, which were saving money by substituting self-service for paid employees, to be responsible for " injuries to customers that are a foreseeable consequence of their use of that merchandising approach unless they take reasonable precautions to prevent such injuries." (Emphasis in original.) Id., 786. " The court reasoned that a store owner's mode of operation that increases the risk of dangerous, transitory conditions affords notice when the operation invites inherently foreseeable or regularly occurring hazards." Porto v. Petco Animal Supplies Stores, Inc., supra, 167 Conn.App. 579; see Kelly v. Stop & Shop, Inc., supra, 281 Conn. 780. " The modern self-service form of retail sales encourages . . . patrons to obtain for themselves from shelves and containers the items they wish to purchase, and to move them from one part of the store to another in baskets and shopping carts as they continue to shop for other items, thus increasing the risk of droppage and spillage." (Internal quotation marks omitted.) Id., 778. " Thus, modern-day supermarkets, self-service marts, cafeterias, fast-food restaurants and other business premises should be aware of the potentially hazardous conditions that arise from the way in which they conduct their business . . . In each of these cases, the nature of the defendant's business gives rise to a substantial risk of injury to customers from slip-and-fall accidents." (Internal quotation marks omitted.) Id. In other words, " stores engaging in foreseeably hazardous self-service operations may be deemed to have constructive notice of those conditions when they result in injury." (Internal quotation marks omitted.) Id., 780.
The Appellate Court recently held that, " [W]e distill three overarching requirements for the mode of operation rule to apply: (1) the defendant must have a particular mode of operation distinct from the ordinary operation of a related business; (2) that mode of operation must create a regularly occurring or inherently foreseeable hazard; and (3) the injury must happen within a limited zone of risk." Porto v. Petco Animal Supplies Stores, Inc., supra, 167 Conn.App. 581. Further, " [t]he justification proffered for adopting the . . . rule . . . suggests that third party interference is a necessary component of such a claim." Konesky v. Post Road Entertainment, 144 Conn.App. 128, 141-42 n.11, 72 A.3d 1152, cert. denied, 310 Conn. 915, 76 A.3d 630 (2013).
In the present case, the plaintiff contends that the general manner in which the defendant undertook its maintenance of the premises constitutes its mode of operation. The defendant's rules, declarations, bylaws, charters and ordinances demonstrate that the defendant undertook the maintenance and repair of outdoor areas, including, inter alia, paved areas, walkways, exterior stairs, plantings and landscaped areas. Mosier's deposition testimony provides a description of the customary manner in which the defendant handled its maintenance of the grounds, including hiring landscapers to prune, mulch and trim various plants, remove leaves and other plant debris, and hiring an arborist to trim trees as needed. Mosier Dep. 18-19, 21-22. Mosier also testified that she conducts a walk around the premises at least once a week to " make sure that everything is okay" and for " unit owners' safety." Mosier Dep. 28:16-19, 29:1-4.
However, because this evidence provides only a description of the customary way in which the defendant maintained the premises, it is insufficient to establish an unusual and hazardous mode of operation. See Porto v. Petco Animal Supplies Stores, Inc., supra, 167 Conn.App. 582 (" [m]erely describing the customary way of conducting a particular kind of business is not enough" (internal quotation marks omitted)). For the rule to apply, a particular mode of operation must be considerably different from that of similarly operated businesses. Id.; see Konesky v. Post Road Entertainment, supra, 144 Conn.App. 139 (" rule is applied appropriately only when a business employs 'a more specific method of operation within' the general business environment that is distinct from the ordinary, inevitable way of conducting the sort of commerce in which the business is engaged") (emphasis in original). Here, the plaintiff has presented no evidence that the defendant's mode of operation is any different from any other condominium association or landlord. Further, there is no evidence of a causal connection between the defendant's conduct and foreseeable careless third-party interference, such as by customers, in a particular zone of risk. See Porto v. Petco Animal Supplies Stores, Inc., supra, 167 Conn.App. 582 (" the mode of operation rule may substitute for notice to a retailer when the store's mode of operation invites careless customer interference, creating an expected, foreseeable hazard"). The defendant's maintenance of the property through maintenance contractors does not excuse the plaintiff from proving actual or constructive notice of the hazard. Such contractors are not the careless patrons that the mode of operation rule was intended to address. As to the second element, the plaintiff has not presented evidence demonstrating that the manner in which the defendant conducts maintenance on the property created regularly occurring or inherently foreseeable falling tree branches. Rather, the record demonstrates only that the trees and other vegetation on the premises shed leaves, twigs, branches and other debris, which the defendant routinely cleared. Moreover, the plaintiff has not demonstrated where on the grounds of the property the risk of injury from the foregoing was continuous or foreseeably inherent as a result of the manner in which the defendant maintained the grounds. See id., 583 (zone of risk must be specific to " those areas where the risk of injury is continuous or foreseeably inherent" as a result of the defendant's mode of operation (internal quotation marks omitted)). Although the zone of risk " need not be limited to a precise, measurable area, some limitations are required." Id., 584. Should this court adopt the plaintiff's position that the mode of operation is the general manner in which the property is maintained, the defendant's entire property would be the zone of risk, which result has been rejected by the Appellate Court. See, e.g., id., 583-84 (" The underlying rationale is to impose liability for specific areas where there is a reasonably foreseeable risk . . . [I]t would be . . . unfair to impose liability under the mode of operation when there is no identifiable zone of risk of which proprietors should be on notice"); see also Konesky v. Post Road Entertainment, supra, 144 Conn.App. 143.
C. The Requirement of Actual or Constructive Notice
Because the plaintiff has not demonstrated that the mode of operation rule applies to the present circumstances, proof of actual or constructive notice of the specific defect that caused his injuries remains an element of his cause of action. See Fisher v. Big Y Foods, Inc., supra, 298 Conn. 439 (" [w]hen a dangerous condition arises through means other than those reasonably anticipated from the mode of operation, the traditional burden of proving notice remains with the plaintiff" (internal quotation marks omitted)). However, the plaintiff did not brief the issue of actual or constructive notice, and did not submit sufficient evidence to support a finding that the defendant had actual or constructive notice of the specific defect that caused the plaintiff's injuries. 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." Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966). " [T]o establish liability for an injury caused by a falling tree limb, a plaintiff must establish that the landowner had either actual or constructive notice of the limb's defective condition." McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 294-95, 791 A.2d 602 (2002), aff'd, 263 Conn. 378, 819 A.2d 795 (2003). Here, there is no evidence that the defendant knew or should have known that the subject tree branch was decayed or otherwise in a deceased condition rendering the branch more likely to fracture, break or fall. The record is devoid of a description of the condition of the branch as it lay on the stoop, as well as evidence establishing that the branch came from the subject birch tree, its location on the birch tree, the length of time it had been on the plaintiff's stoop, and that it had fallen onto the stoop, as opposed to having been blown or placed there. See, e.g., id., 295-96. Rather, the record reveals that the plaintiff complained to the defendant about generic tree debris and the general condition of the area surrounding the plaintiff's residence. See, e.g., Monahan v. Montgomery, supra, 153 Conn. 391-92 (evidence of " dead leaves, brush, branches and debris and the existence in a windy location of overhanging trees with dead branches" insufficient to establish constructive notice where plaintiff tripped over a tree branch and fell).
In his affidavit, the plaintiff attests that, prior to his accident, he complained to the defendant " about the problems created by the large birch tree" adjacent to his unit, including branches, twigs and leaves on the ground; tree sap and bird droppings on cars, walks and stoops; and tree roots disrupting the walkways. However, Mosier testified that the defendant was not even aware of the foregoing complaints until 2016, after the defendant's accident. Mosier Dep. 40-52. Likewise, although the plaintiff relies heavily on an admission that the defendant was advised by arborists, prior to the plaintiff's accident, that the birch trees were too large and should not have been planted in those locations, this is evidence only of conditions naturally productive of a falling tree branch, not of a specific branch's defective condition. There is no evidence that the arborists advised the defendant of any diseased branches or other structural defects with the tree that could give rise to falling branches. Moreover, this admission is contradicted by Mosier's testimony that the defendant was not so advised prior to the plaintiff's accident. Mosier Dep. 66:19-25, 67:1-5. Based on the foregoing, this Court finds that genuine issues of material fact remain with regard to whether the defendant had actual or constructive notice of the specific defect causing the plaintiff's injuries. See Riccio v. Harbour Village Condominium Assn., 281 Conn. 160, 914 A.2d 529 (2007) (Supreme Court declined to relax the requirement of notice of specific defect to notice of general conditions.) Accordingly, this court need not reach the parties' other arguments as to the remaining elements of the plaintiff's negligence action.
Paragraph five of the plaintiff's affidavit contains inadmissible hearsay, as it sets forth alleged statements made by other residents to the defendant about the tree. See Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007) (hearsay evidence is inadmissible for the purpose of supporting or defeating a motion for summary judgment); Practice Book § 17-46. The court considers the statements to the extent made by the plaintiff only. Even if this court considered statements made by others, they are evidence only of a general condition naturally productive of the existence of a branch on a stoop upon which a person could fall and sustain injury. See, e.g., Monahan v. Montgomery, supra, 153 Conn. 391-92.
Conclusion
For the foregoing reasons, the plaintiff's motion for summary judgment is denied.