Opinion
No. CV-10 6002424
November 17, 2011
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT NO. 112
On February 18, 2011, the defendant, Wauregan Café, LLC, filed a motion for summary judgment on the ground that there is no genuine issue as to any material fact regarding the defendant's liability. The motion is accompanied by a memorandum of law. The plaintiff, Alma Silvan, filed an objection and memorandum of law in opposition to the motion on June 15, 2011. On July 15, 2011, the defendant filed a reply and on July 20, 2011, the plaintiff filed a supplement to her objection. This matter was heard on the short calendar on September 26, 2011.
The plaintiff filed a four-count complaint on December 30, 2009. In count one of the complaint, the plaintiff alleges the following facts. On December 3, 2007, the plaintiff was dining at Wauregan Café in Norwich, Connecticut. While seated at a table after ordering her food, the plaintiff's chair collapsed, causing her to fall and sustain injuries. The plaintiff alleges that the defendant "acted or failed to act in one or more of the following ways amounting to negligent conduct: a. Failed to provide a good, safe, chair for the Plaintiff to use while on said premises; b. Failed to provide a proper chair for a patron to sit on while on said premises; c. Allowed the chair on said premises to become and remain in a defective condition; d. Failed to repair or replace the broken chair prior to allowing the Plaintiff to sit upon it; e. Failed to inspect the chair on said premises to make sure it was in reasonabl[y] safe condition; [and] f. Failed to warn customers, in particular the Plaintiff, of any defects and/or conditions of the chair."
Counts two and three of the complaint contain claims against Wauregan Hotel and Wauregan Development, LLC, respectively. In the plaintiff's memorandum of law in opposition to the defendant's motion for summary judgment, the plaintiff represented that summary judgment could be granted as to those counts. In count four of the complaint, the plaintiff asserts a products liability claim against Chair Baltic, a corporation that sold and installed the chair the plaintiff was sitting on when she was injured. Chair Baltic has not appeared in this case.
In support of its motion, the defendant submitted as evidence (1) a signed and sworn affidavit of Alex Bekiaris, the restaurant's owner at the time of the incident, (2) certain pages of the certified deposition of the plaintiff and (3) a signed and sworn affidavit of Bruce Becker, on behalf of Wauregan Development, LLC. In support of its opposition to the defendant's motion, the plaintiff submitted as evidence (1) a signed and sworn affidavit of furniture restoration expert Craig Carlsen, (2) a report written by Carlsen and (3) a deposition of Bekiaris.
The deposition transcript was uncertified but was submitted without an objection from the defendant. The court will therefore consider the submission, as it is in the court's discretion to do so. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
DISCUSSION
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). "The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Washington v. Blackmore, 119 Conn.App. 218, 220, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010). "The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically." Wiele v. Board of Assessment Appeals, 119 Conn.App. 544, 555, 988 A.2d 889 (2010).
"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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). "On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint." (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).
"Issues of negligence are ordinarily not susceptible of 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 . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
The defendant argues that it was not on actual or constructive notice of the alleged defects in the chair that caused the plaintiff's injury. Specifically, the defendant argues that Bekiaris never received any complaints or personally observed any problems with the particular chair the plaintiff used or any identical chairs. The defendant therefore argues that there is no genuine dispute of material fact and it is entitled to judgment as a matter of law. The plaintiff counters that the sole issue presented is whether the plaintiff's injuries were foreseeable, not whether the defendant was on notice of any defect in the chair. In making this argument, the plaintiff rejects the defendant's contention that this is a premises liability case. The plaintiff asserts that the chairs at Wauregan Café were not selected to suit the conditions at the restaurant and were not designed for the manner the defendant used them. The plaintiff therefore argues that the defendant's motion should be denied because there is a genuine dispute as to whether the plaintiff's injury was a foreseeable result of the defendant's negligence.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002). "Typically, [f]or the plaintiff to recover for the breach of a duty owed to her as a business invitee, she ha[s] to allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her [injury] . . . Either type of notice must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." (Internal quotation marks omitted.) Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 474, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002).
"If the plaintiff, however, alleges an affirmative act of negligence, i.e., 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." (Citations omitted; internal quotation marks omitted.) Id.; see also Tuite v. Stop Shop Cos., 45 Conn.App. 305, 308, 696 A.2d 363 (1997) ("It is well established that a plaintiff does not have to prove that a defendant had actual or constructive notice of a dangerous condition when the plaintiff claims that the defendant's employees created the condition"). The distinction to be made, therefore, is whether the plaintiff is advancing a theory of negligent activity or a theory of negligence on the basis of a premises defect. See Meek v. Wal-Mart Stores, Inc., supra, 484; see also Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 67 (Tex.App. 2000) (distinguishing premises defect theory from negligent activity theory).
For example, in Fuller v. First National Supermarkets, Inc., 38 Conn.App. 299, 661 A.2d 110 (1995), the plaintiff brought suit against a supermarket for injuries the plaintiff sustained after slipping on pricing stickers while shopping at the supermarket. On appeal, the defendant argued that the trial court erred in failing to instruct the jury that the plaintiff had the burden of proving actual or constructive notice of the accumulation of the pricing stickers. Id., 301-02. The plaintiff argued that her complaint, read broadly, alleged that the defendant created the condition that resulted in her injuries and that, therefore, the plaintiff was not required to prove notice. Id., 300-01.
The relevant portion of the plaintiff's complaint alleged: "The plaintiff's injuries and damages were caused by the carelessness and negligence of the defendant, its agents, servants and/or employees in one or more of the following ways in that they:
a. failed to maintain a safe and hazard-free floor for the use of patrons;
b. failed to properly remove price stickers from said floor, thus creating a hazardous situation;
c. permitted price stickers to accumulate on the floor;
d. failed to warn patrons, including the plaintiff, of the afore described hazardous conditions;
e. failed to close off the afore described hazardous area from use by the public, including the plaintiff;
g. permitted patrons to enter upon said floor which they knew or should have known was unsafe;
h. failed to properly inspect the afore described floor."
(Internal quotation marks omitted.) Fuller v. First National Supermarkets, Inc., supra, 38 Conn.App. 301 n. 1.
The Appellate Court agreed with the plaintiff, holding that "the complaint, read broadly and realistically, provided the defendant with sufficient notice that the plaintiff was claiming that the defendant caused pricing stickers to accumulate on the floor of the supermarket. Moreover, the evidence presented at trial by the plaintiff supported such a claim. For example, the defendant's store manager testified that store employees regularly apply pricing stickers to merchandise and that customers do not have access to pricing stickers. He also testified that it was a safe assumption that, if there were pricing stickers on the floor, they would have come from the pricing guns used by store employees. Also, no evidence was presented that some third party caused the stickers to be on the floor." Id., 303. Thus, the plaintiff was not required to prove notice, as she alleged and presented sufficient evidence to show that the defendant created the condition that caused her injuries.
Similarly, in DeFrancesco v. SNET, Superior Court, judicial district of New Haven, Docket No. CV 08 5024451 (August 31, 2010, Wilson, J.), the plaintiff sued two telephone companies and alleged, among other claims, that the defendants negligently installed telephone pole cables that caused his injuries. The defendants filed a motion for summary judgment, arguing that the plaintiff's complaint sounded only in premises liability and that, therefore, the plaintiff had to prove actual or constructive notice. Id. The court disagreed and denied the defendants' motion for summary judgment, stating that the plaintiff's complaint "contains three negligence allegations based on the defendants' affirmative act of negligence." Id. Although several of the remaining allegations — including the defendants' failure to inspect, maintain and/or warn of the hazardous condition — sounded in premises liability and thus required a showing of actual or constructive notice, the complaint survived summary judgment on the plaintiff's alternative theory of negligence. Id.; see also Adiletta v. Reckson Associates Realty Corp., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 03 0083135 (March 12, 2007, Esposito, J.) ("The plaintiff is not required to produce evidence demonstrating either actual or constructive notice in the present case, however, because her complaint does not rely upon a premises liability theory").
In the present case, the plaintiff has alleged in her complaint that the defendant "acted or failed to act" by "[a]llow[ing] the chair on [the] premises to become and remain in a defective condition" and "[f]ail[ing] to repair or replace the broken chair prior to allowing the Plaintiff to sit upon it." These allegations, construed broadly; Wiele v. Board of Assessment Appeals, supra, 119 Conn.App. 555; set forth facts alleging affirmative negligence by the defendant, and are analogous to the plaintiff's allegations in Fuller v. First National Supermarkets, Inc., supra, 38 Conn.App. 299 (allegations that the defendant "failed to properly remove price stickers" from the floor and "permitted price stickers to accumulate on the floor" amount to claim of affirmative negligence). Thus, as to these allegations, the plaintiff need not prove that the defendant had actual or constructive notice of the hazardous condition.
The defendant argues that the mode of operation rule announced in Kelly v. Stop Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007), which held that a business invitee need not prove actual or constructive notice in a premises liability claim where an unsafe condition is a foreseeable consequence of the business owner's self-service method of operation, is inapplicable in the instant matter. While the defendant may be correct in that the defendant's restaurant was not a self-service business, the mode of operation rule is distinguishable from affirmative negligence. See id., 785 n. 6 ("With respect to [an affirmative act of negligence], proof of notice is not required because the defendant is presumed to be on notice of the conduct of its own employees; with respect to the [mode of operation rule], proof of notice is unnecessary because the defendant is presumed to be on notice of the foreseeable conduct of its customers in view of its manner of operation. Thus, in both cases, notice is not required because the defendant reasonably may be deemed to have created the unsafe condition, either directly, as in the case of an affirmative act of negligence, or indirectly, as in the case of foreseeable conduct by a customer acting in accordance with the proprietor's self-service method of operation").
In support of its argument, the defendant has submitted an affidavit of Bekiaris stating that he never received any complaints or observed any problems with the chairs. The defendant also submitted a certified deposition of the plaintiff where she states that there were no problems with the chair while she was sitting on it for over one hour. Further, the defendant points to the summons and case type codes sheet, where the plaintiff identified this as a premises liability case, in arguing that the plaintiff must prove notice in order to prevail.
The defendant has not, however, put forth any evidence regarding the plaintiff's allegations of affirmative negligence. Thus, the defendant has not met its burden of negating each claim as framed in the plaintiff's complaint. In any event, the plaintiff has put forth evidence demonstrating the defendant's affirmative negligence. In his deposition testimony, Bekiaris stated that he moved the chairs outside during the summer months. Carlsen stated in his report that the chairs were meant to be used indoors and that outdoor use weakened the glue joints on the chair frame. Carlsen also stated that the heat and tiles in the restaurant may have contributed to the collapse of the chair. This evidence is sufficient to set forth a genuine dispute as to whether the defendant was negligent in affirmatively creating the condition that caused the plaintiff's injuries and whether the plaintiff's injuries were a foreseeable result of the defendant's conduct.
Lastly, it should be noted that the remaining claims in count one of the plaintiff's complaint that do not allege affirmative negligence — e.g., failure to inspect and failure to warn — do require a showing of actual or constructive notice, as these allegations sound in premises liability. The plaintiff's complaint survives the defendant's motion, however, on the alternative theory of negligence. See DeFrancesco v. SNET, supra, Superior Court, Docket No. CV 08 5024451.
Further, assuming that the defendant has met its burden with respect to the premises liability claim by demonstrating that it was not on notice of the defect, and the plaintiff has not met her burden of creating a genuine issue regarding notice, the court would not grant the defendant's motion as to the premises liability claim. There is a split among the Superior Court as to whether a court can grant summary judgment on one of multiple causes of action contained in a single count of a complaint; Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 809 n. 41, 967 A.2d 1 (2009); and "[t]o date, Connecticut's appellate courts have yet to resolve this split of authority. The better reasoned opinions, however, conclude that it is not possible to render summary judgment on part of a count of a complaint . . . [T]he majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment." (Internal quotation marks omitted.) CitiMortgage, Inc. v. Ceraso, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 08 5017954 (May 4, 2010, Owens, J.T.R.).
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is hereby denied.